Bombay High Court
Devendranath Keshrinath ... vs Premlabai W/O Ramnath Bhiwandkar ... on 3 October, 2002
Equivalent citations: AIR 2003 Bom 424
Author: A Khanwilkar
Bench: A Khanwilkar
JUDGMENT
A.M. Khanwilkar, J.
1. This Appeal by the original Defendant Nos. 2 to
4 and 6 respectively takes exception to the
Judgment and decree passed by the City Civil
Court, Bombay dated 27th October, 1980 in Suit
No. 5729 of 1967. The Respondent Nos. 1 to 4 are
the original plaintiffs. Respondent No. 5 is the
original Defendant No. 7 and Respondent Nos. 6 to 9
respectively. The suit property is immovable
property situated at 36M. Mugbhat, Cross Lane,
Girgaon Bombay. The property was owned by one
Moreshwar Bhai Rele who died intestete in Bombay
on or about 26th August, 1916. The agreed
genealogy in respect of the family, as produced on
record, is as follows:-
? SCHEDULE "A"
Moreshwar Bhai Role
(died on 26.8.1916)
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Savitribai (W) Radhabai
(died on 1938) Widowed daughter
(died on 14.7.1955)
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Ramnath Premalabai Keshrinath Vimla Ambarnath Kamlabai Shakuntal
(died on 9.12.1963)(plff.No.1)(died on 7.4.55)Deft.No.15 (died on 18.12.65)(deft. No.8) (Married) | | |
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| | Ashok Kumudini Vincini
| | Deft.No.9 Deft.No.10 Deft.No.11
| |
| -------------------------------------------------
| | | | | |
| Jalandarnath Devendranath Narendranath Suresh Lata
| Deft. No.1 Deft.No.2 Deft.No.3 Deft.No.4 Deft.No.6
| (since deceased) Appl No.1 Appll No.2 Apll No.3 Appl No.4
|
? |
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Bhash Leena Pramodini Sunundani
Plff.No.7 Plff.No.2 Plff.No.3 Plff.No.4
2. The Respondents Nos. 1 to 4 filed Suit for the
following reliefs:-
"(a) it may be declared that the Defendants s.
Nos. 1 to 6 or any of them have no interest in
the said property.
(b) that it may be declared that the
Plaintiffs and Defendant No. 7 are entitled to
a moiety of the said property and the other
moiety belongs to the Defendants Nos. 8 to 11.
(c) that Defendants Nos. 1 to 6 may be
ordered to give vacant and peaceful possession
of the portion of the said property forthwith
or within such time as this Honourable Court
may fix.
(d) that Defendants Nos. 1 to 6 may be
ordered to pay to the Plaintiffs and
Defendants Nos. 7 to 11 compensation at the
rate "of Rs. 80" per month from the 30th April
1964 until possession is delivered to them as
aforesaid.
(e) that the Defendants Nos. 1 to 6 or in
the alternative Defendant No. 2 may be ordered
to account to the Plaintiffs and Defendants
Nos. 7 to 11 for the rents collected by them or
him.
(f) that Defendants Nos. 1 to 6 may be
ordered to pay the costs of this suit.
(g) for further and other reliefs."
3. It is not in dispute that the parties are
governed by the law of inheritance as applicable
to Bombay city, which is known as "Mayukha". In
the circumstances, there can be no dispute that
the suit property was inherited by Radhabai as her
stridhan property under the Mayukha law, as
applicable to the parties. Stridhan is divided in
two classes- one technical and second, non
technical. In so far as inheretence of the suit
property, the same is a non technical stridhan.
There is no dispute on this position. It is in
this background the suit for the aforesaid reliefs
came to be filed before the City Civil Court. The
trial court has held that the parties are governed
by Mayukha Law and the property was inhereted by
Radhabai as non technical stridhan. In view of
the provisions of Mayukha law, the sons would get
precedence for inheretence before the grand sons.
The trial court has also found that undisputedly
the father of defendants Nos. 1 to 6 had
pre-deceased his mother Radhabai, whereas Radhabai
died on 14.7.55, leaving behind her surviving two
sons Ramnath and Ambernath as her only heirs.
Accordingly, Ramanth and Ambernath have inhereted
the non technical stridhan property of Radhabai in
equal shares. The defendants-appellants herein
had raised the plea that the suit as filed by the
Respondent-plaintiff was barred by limitation.
Event hat plea has been considered by the trial
court and on analysing relevant materials on
record has found that the defendants failed to
establish that they had given any notice to the
plaintiff or that the plaintiff had knowledge that
possession of the defendants Nos. 2 to 6 was in
displacement of the rights of the plaintiffs or
that the plaintiffs had reason to know that their
rights were invaded. Having recorded that
opinion, the trial court proceeded to held that
the suit as filed by the Plaintiffs in the year
1967 was within limitation and that the defendants
failed to establish the plea of adverse
possession. Consequently, the trial court decreed
the suit in terms of prayer Clauses-(a), (b), (c),
(d) and (h) with modification that it should be
defendants Nos. 2 to 6 where the words 1 to 6
occurred. This decision is subject matter of
challenging in the present appeal.
4. On considering the arguments of both the
sides, following points arise for my
consideration:-
1. Whether the Suit is barred by law of limitation?
2. Whether the defendants have established their
claim of adverse possession in respect of the suit property?
5. In so far as point of limitation is concerned,
according to Mr. Rane for the appellants-original
defendants, the suit was clearly barred by law of
limitation since it was filed after expiry of 12
years from the death of Radhabai who admittedly,
died on 14.7.55, whereas the Suit is filed on
24.8.67. According to him the mandate of Article
65, which applies to the present case, required
the Plaintiffs to institute Suit within 12 years
from the death of Radhabai. He has placed
reliance on two decisions to contend that the
effect of deeming provision in explanation (b) to
Article 65 is that the said provision applied
generally to all suits filed by the Hindu
plaintiff where right to possession is claimed on
the death of a female Hindu. He placed reliance
on the decision in the case of Munusamy
v. Rajambal and
another decision in the case of Shiv Dass v. Devki
reported in AIR 1978 PUNJAB & HARYANA 285.
6. On the other hand, Mr. Dalvi for the
Respondents-original Plaintiffs contends that
Article 65 as it presently appears in the new Act
i.e. Limitation Act of 1963 is the amalgam of
various articles of the old Indian Limitation Act,
1908- being Articles 47, 136, 137, 138, 140, 141,
and 144. According to him, explanation (b) is
nothing but reiteration of the position which
obtained by virtue of Article 141 under the old
Act. He submits that it is well settled that in
cases where female was holding limited interest in
the disputed property only in those cases the
provisions of Article 141 would apply and since
explanation (b) is reiteration of that position
the same principle would apply. He contends that
in the present case, however, provision such as
Article 141 will have no application. According
to him, if that principle is accepted then the
Suit as filed was not one referable to Article
141, but Article 144 of the old Act; and,
therefore, in such a situation the Suit need not
be filed within 12 years from death of the female
but only when the defendant sets up a plea of
adverse possession against the Plaintiff. He has
placed reliance on the decision of the Division
Bench of this Court in the case of Malkarjun
v. Amrita reported in AIR 1918 Bombay 142, to
buttress this contention.
7. Having regard to the above said contentions,
the first question that arises for my
consideration is: whether there is any departure
in the legislative intent in enacting the present
Article 65? To my mind, present Article 65 of
the Limitation Act 1963 (New Act) is the amalgam
of Article 47, 136, 137, 138, 140, 141, and 144
of the Old Act. All those articles of the old Act
related to suits for recovery of possession of
immovable property. The present Article 65 has
been clothed in such a manner so as to do away
with different Articles as existed in the old Act
and the legislative intent is that all suits which
formerly fell within the aforesaid Articles should
be governed by one Article i.e. Article 65. By
introducing explanation to Article 65 in the shape
of Clauses-(a), (b) and (c), the legislature has
specifically retained the provisions of Articles
140, 141 and 137 respectively of the old Act.
There can be no dispute that explanation (b) to
Article 65 of the New Act is referable to Article
141 of the old Act. Article 141 of the old Act
reads thus:-
Description of
Period of
.Time from
Suit limitation
which period begins
to run
141like
suit by
a
Hindu
or Muhammadan entitled
to the possession
of immoveable property
on the
death of
a
Hindu
or Muhammadan female.
Twelve years
when the female
dies
Whereas Article
65
of the
present Act
reads thus:-
For possession
of immovable property or any
interest therein based on
Twelve years
When the
posse ssion of the
defendant becomes title,
adverse to
the plaintiff.
Explanation- for
the purposes of this
article- '
(a)
(b) where
the suit
is by
a Hindu or
Muslim entitled to
the possession of immovable
property on
the death of
a Hindu
or Muslim female,
the possession of the defendant
shall
be deemed to
become adverse only
when the
female dies;
(c). .............
8. According to Mr. Rane there has been a complete
departure in the scheme of Article 65 from the
earlier provisions contained in the old Act, in
particular Article 141 referred to above.
According to him, Article 141 opens with the
expression "Like Suit by a Hindu or Muhammadan",
whereas Article 65 is specific with reference to
suit "for possession of immovable property." He
further submits that there was no deeming
provision in Article 141 of the old Act, unlike
the present provision in the shape of Clause-(b)
which provides that the possession of the
defendant becomes adverse only when the female
dies. He further submits that going by the plain
language of Article 65 and explanation (b)
thereof, the possession of the defendants became
adverse to the plaintiffs only when the female
died and that the starting point for limitation
would also be when the female died. He submits
that so far as Article 65 is concerned, in
particular explanation (b) thereto, the same would
apply generally to all suits filed for possession
of immovable property on the death of Hindu or
Muhammaden female and not limited to suits where
the female had limited interest in the property,
which position obtained in terms of Article 141 of
the old Act. According to him, therefore, there
is clear departure in the legislative intent of
enacting Article 65. To support this contention,
he has placed emphasis on the observations made by
the Madras High Court, in Munusamy's case cited
supra. Emphasis was placed on the observations in
paragraph-26 of that decision, which reads thus:-
"We hold in passing that Article 65 of the
Schedule to the Lim. Act, 1963, read with
Expln.(b) to that Article applied generally to
all suits by Hindu plaintiffs, where the right
to possession is claimed on the death of a
female Hindu. The claim may be that of a
reversioner of the last male holder or it may
be that of an heir of a deceased female Hindu.
Whatever be the case, provided the right of
possession in the suit property is claimed on
the death of a female Hindu, the deeming
provision of Expln. (b) to Article 65 wold
operate and the suit for possession would be
within time if filed within 12 years of the
death of the female Hindu on whose death the
plaintiff claims possession."
9. With utmost respect to the Madras High Court,
I am of the view that there is no departure in the
legislative intent in enacting Article 65, from
the position which obtained by virtue of Article
141 of the old Act. There is nothing to suggest
that the legislature wanted to depart from that
situation. On the other hand, the only inference
that can be drawn is that the legislature wanted
to amalgamate all the different provisions under
part VIII of the first Schedule of the old
Limitation Act into one, as has been enacted in
the form of Article 65 of the new Act. In the
first place, the Madras High Court had no occasion
to examine the question as to whether any change
has been brought about by the Legislature by
enacting Article 65 and, has made the above
observations in passing. Understood thus, that
decision would be of no avail. In any case, that
decision cannot be a binding precedent on this
court. To my mind, however, Article 65 is a
compendium of various provisions which covered the
suit for possession of immovable property or any
interest therein based on little under the old Act.
Moreover, Clauses (a) to (c) of explanation are
specifically referable to Articles 140, 141 and
137 of the old Act respectively. By incorporating
these Clauses (a) to (c), the legislative intent
or relating the rigours of Articles 140, 141 and
137 of the Old Act is in fact reinforced. To put
it differently, although the present Article 65 is
the amalgam of Articles 47, 136, 137, 138, 140,
141 and 144 of the Old Act, but the Legislature
has specifically retained the position as obtained
by virtue of Articles 140, 141 and 137 only- by
way of Clauses (a) to (c) respectively in the
Explanation. We are concerned with Article 141,
which is corresponding to Clause (b) of the
Explanation to Article 65. That explanation was
necessitated because, Article 141 of the Old Act
provided that the limitation for filing suits by a
plaintiff whose right and title to sue for
possession occurs upon the death of a female
holding the limited woman's estate would accrue
from the date when the female dies. (See
Malkarjun v. Amrita supra). Whereas, Article 65
as enacted deals generally with all the situations
relating to suit for possession of immovable
property or any interest therein based on title
and the limitation would start when the possession
of the defendants becomes adverse to the
plaintiff. This is the rule, but cases covered by
Clause (b) would stand on a different footing as
it would apply to female holding limited women's
estate. Clause (b)merely explains as to when the
possession of the defendant can be said to have
become adverse to the plaintiff in cases covered
by Clause (b). The provision will have to be
understood in that context only. To my mind,
therefore, Clause-(b) of explanation to Article 65
would apply to cases where the suit is for
possession occurring upon the death of a female
holding the limited woman's estate.
10. In the present case however, Radhabai was not
a female holding the limited woman's estate. In
such a case, the defendant, to succeed in
establishing that the suit for possession of
immovable property filed against him was barred
by limitation, is obliged to plead and establish
that his possession was adverse to the plaintiff
for a period of more than twelve years proceeding
the institution of the suit. If the defendant
fails either to plead and/or prove this fact then
the suit cannot be said to be barred by
limitation. Therefore, in the case such as the
present one, the date of death of the female
(Radhabai) would be of no consequence. Whereas,
the defendants were obliged to plead and establish
that their possession had become adverse to the
plaintiff and was so adverse for more than 12
years before the institution of the suit, so as to
contend that the suit as filed was barred by
limitation.
11. The learned Counsel had also relied on the
decision of Punjab & Haryana High Court in Shiv
Das v. Devki supra. In the first place, in that
case the female was limited owner in respect of
the property she had inherited. Naturally, in
such a case Clause (b) of explanation to Article
65 of the New Act will be attracted. Accordingly,
in paragraph-9 of the said decision it has been
observed that explanation lays down that the
possession of the defendant becomes adverse
fictionally only when the female dies. That is
the effect of the deeming provision in Clause-(b)
to the explanation. This decision therefore, is
of no avail to the Appellants.
12. A priori, Clause-(b) of Explanation to Article
65 will have no application to the present case,
for it is not in dispute that Radhabai had
inhereted the property as non technical Stridhan
under Mayukha law and had absolute interest
therein. It that be so, the matter was and is
governed by the general principles of Article 65
and it was imperative on the defendants to plead
and prove that their possession had become adverse
to the plaintiffs for more than 12 years prior to
the date of institution of the suit so as to
contend that the suit is barred by limitation.
That is lacking in the present case. The trial
court has addressed itself to all the relevant
materials on record. The question as to whether
defendants had pleaded and proved adverse
possession has been considered by the trial court
in para-67 to 71 of its Judgment. The same reads
thus:-
"67. There can be no discontinuance of
possession merely because of the absence of
physical possession. Adverse possession must
be adequate in continuity, publicity and
extent so as to show that it is possession
adverse to the true owner. In order that
possession may be adverse, there must be (1) a
disclaimer of other's right by an open
assertion of a hostile title on the part of
the co-owner setting up adverse possession and
(2) notice thereof to others, direct or to be
inferred from notorious acts and
circumstances. So, there must be on the part
of Defendants Nos. 2 to 6 setting up adverse
possession, a disclaimer of other's right by
an open and unequivocal assertions of a
hostile title.
68. Defendant No. 7 has no doubt stated in
cross-examination:
"I do not know what rent the tenants of the
ground floor are paying. I personally have
not received any moneys from any of the
tenants by way of rent, I cannot say whether
my father had received any moneys by way of
rent from the tenants or not. I have no
personal knowledge as to who was collecting
the rent."
Defendant No. 7 has been cross-examined by the
learned Advocate for Defendants Nos. 2 to 6 to
show that they were not in possession of the
suit property and that, at the most, they paid
casual visits and stayed there for short
periods. I have already held that Ambernath
gave authority to Defendant No. 2 to recover
the rent of the suit property during his
lifetime an that Defendant No. 2 was
recovering rent under that authority. If my
finding on issue No. 13 is correct, then it
have become owners by adverse possession
because they were collecting the rent under
the authority of Ambernath who has half share
in the suit property.
69. Assuming my finding on issue No. 13 is not
correct, then mere collection of rent by
itself is not sufficient to come to a
conclusion that Defendants Nos. 2 to 6 have
become owners by adverse possession. As has
been stated earlier, there can be no
discontinuance of possession merely because of
absence of physical possession. As observed
in I.L.R.,38, Bombay, 227, the Defendants must
prove that they had an intention to hold
adversely so as to acquire an absolute estate.
Further, there must also be notice or
knowledge or circumstance that could have
given notice or knowledge to the Plaintiffs
that the Defendants possession was in
displacement of their rights. There is
nothing on record to show that they had reason
to know that their rights had been invaded and
until they had a reason to know that there was
no necessity for them to take action.
70. Defendant No. 4 has stated in his
cross-examination by the learned Advocate for
Defendants Nos. 8 and 9 that there was no
dispute amongst Radhabai and her three sons
regarding the property and none of her sons
had made any claim at any time against
Radhabai. He has further stated in his
cross-examination:
After the death of Radhabai, till the notice
was received by us in 1964, (none of the)
Defendants i.e. 1 to 6 and not raise any
objection regarding the suit property.
Similarly Defendants Nos. 1 to 6 did not make
any claim in respect of the suit property
against either Ambernath or Ramnath or their
heirs. During lifetime of Savitribai,
Savitribai and Radhabai and Radhabai's
children were staying in the suit premises and
they were staying so as members of one
family....
He has further stated in his cross-examination:
It is true that my father was staying
in the suit premises as son of Radhabai and we
continued to stay on the first floor of the
suit premises as the children of Keshrinath.
We continued to stay in the suit premises even
after the death of Keshrinath.
He has also stated in his cross-examination
that he cannot say as to whether Ramnath and
his family, whenever they came to Bombay,
resided in the suit property claiming it to be
their property and that be does not agree that
the heirs of Ramnath and Ambernath are the
only owners of the property after the death of
Radhabai. He has nowhere stated in his
examination-in-chief that they have become
owners by adverse possession. So from what he
has stated in his cross-examination by the
there can be no doubt that Keshrinath and or
his heirs Defendants Nos. 1 to 6 have not
become owners of the suit property by adverse
possession.
71. As stated earlier, there is nothing in
the evidence of Defendant No. 4 to show that
the plaintiffs had notice or knowledge or
circumstance that could have given them notice
or knowledge that possession of Defendants
No. 2 to 6 was in displacement of their rights
and that they had reason to know that their
rights were invaded. Since there was no such
notice or knowledge or circumstance, they had
no reason to know that their rights were
invaded and until they had a reason to know
that, there was no necessity for them to take
action. They have come to know for the first
time in 1965 that Defendants Nos. 1 to 6 claim
to be the owners of the suit property and they
have filed the suit in 1967. So, it cannot be
said that Defendants Nos. 2 to 6 have become
owners by adverse possession as claimed by
them. It cannot be also said that the suit is
barred by limitation as alleged. So for all
that I have stated above. I record my findings
on issue Nos. 1 and 16 as above."
13. I find no reason to take a different view of
the matter; and, therefore, no hesitation to
approve the above reasoning of the trial court in
toto. Having regard to the nature of evidence on
record, the trial court was right in concluding
that there is nothing on record to show that
plaintiffs were noticed or had knowledge of the
fact that possession of defendants Nos. 2 to 6 was
by way of displacement of their rights and that
they had reason to know that their rights have
been invaded. If that be so, the plea of adverse
possession set up by the appellants-defendants
would fail and will have to be stated to be
rejected.
14. Accordingly, the appellants have failed on
both the issue of limitation as well as adverse
possession. As a consequence of which the decree
passed by the trial court will have to be upheld.
It is relevant to note that Mr. Rane for the
appellants fairly conceded that no other
contention would be relevant for deciding the
present appeal because there can be no dispute
that Radhabai had inhereted the property and she
was the absolute owner and further that there were
only two surviving sons who could succeed, as held
by the trial court. To put it differently,
Mr. Rane has not assailed the correctness of the
view taken by the trial court that on applying the
provisions of Mayukha law, surviving sons of
Radhabai inhereted the property which was held as
non technical Stridhan by Radhabai, after her
death on 14.7.55. If that be so, the plaintiffs
became the owners of the suit property and the
suit as filed by them was based on title.
Moreover, the same was within limitation.
15. Accordingly, the appeal fails and the same is
dismissed with costs.
16. At this stage, Mr. Rane prays that operation of
this order be stayed. Mr. Dalvi has no objection
for granting reasonable time provided the
appellants and all other adult members in the
appellants family to file undertaking in this
Court that they shall not part with the possession
of the suit property and would hand over vacant
and peaceful possession thereof to the plaintiffs
on or before 31.12.2002. In view of this
submission made by Mr. Dalvi, appellants are
granted time on condition that they shall file
undertaking as aforesaid within 3 weeks from
today, failing which it would be open to the
plaintiffs-respondents to get the decree executed.
