Arabia Bibi Vs Sarbunnisa On 27 April, 2011

Arabia Bibi vs Sarbunnisa on 27 April, 2011
Madras High Court

In the High Court of Judicature at Madras

Dated: 27.04.2011
Coram:
The Honourable Mr. Justice R.SUBBIAH
Second Appeal
1.
2.
3.
4.
No.339 of 1998
Arabia Bibi
Fathima Jinna
Asraf Unnisa
Barakat Unnisa
..Appellants
..vs..
1. Sarbunnisa
2. Mumtaj Begum (died)
3. Packiri Mohammed
4. Arif
5. Amanullah
6. Jaheber Sadiq
7. Munaver Nissa
8. Fajunnisa
(R5 to R8 were brought on
record as LRs.of the deceased
R2 vide order of Court dated
5.3.2001 in CMP No.10893/2000)
..Respondents
Second Appeal under section 100 of Civil Procedure Code
For Appellants
: Mr.T.M.Hariharan
For Respondents
: Mr.S.Sounthar for R1
filed, against the
judgment a
JUDGMENT
This Second Appeal is directed against the judgment and decree dated 27.03.1997 passed by the
learned Additional District Judge, Nagapattinam, in A.S.No.9 of 1997, whereby the judgment and
decree passed by the learned Additional Subordinate Judge, Mayiladuthurai, dated 22.03.1996 in
O.S.No.287 of 1991, were confirmed.
2. The appellants are defendants 1, 3, 5 and 7; the 1st respondent is the plaintiff and respondents 2
to 4 are defendants 2, 4 6 and 8. Respondents 5 to 8 are the legal representatives of the deceased
Indian Kanoon - http://indiankanoon.org/doc/1678875/
2nd respondent/2nd defendant. To avoid confusion, the parties are hereinafter described as they
were arrayed in the suit.
3. The plaintiff (1st respondent herein) filed the suit in O.S.No.287 of 1991 against the defendants,
numbering 7, for declaration, partition and separate possession of her share in the suit properties
and also for future profits. According to the plaintiff, her father Kamaludeen had two wives and she
is the only child born in 1943 through the first wife, who died in 1944. Thereafter, Kamaludeen
married the sister of the plaintiff's mother as his second wife, viz., Arabia Beevi, the 1st defendant
and they have six children, who are defendants 2 to 7. Kamaludeen, during his lifetime, acquired lot
of properties from his earnings and he celebrated the marriages of the plaintiff as well as the 2nd
defendant and he died in 1963, leaving cash, jewellery of the plaintiff's mother, valuable movables,
immovable properties etc. Soon after his death, his mother also passed away. So, the plaintiff and
the defendants are the only legal heirs of the deceased Kamaludeen.
4. The plaintiff after her marriage settled at her husband's house at Kollumangudy and she often
visited her father's house while he was alive. After his demise, the 1st defendant was managing all
the properties and the plaintiff visited her father's house and she and her husband helped in
performing the marriage of the 3rd defendant. Since the funds as well as the income from the estate
of the 1st defendant was not adequate, the 1st defendant decided to sell a portion of about 2 acres
and the plaintiff also consented for the same and from the sale proceeds, the marriages of other
defendants were celebrated. Thereafter, the attitude of the 1st defendant began to change and she
alienated some of the valuable properties of the estate without the consent and knowledge of the
plaintiff. Hence, the plaintiff demanded partition of her share and though the 1st defendant
accepted for the same, finally she has not complied with the demand. The 1st defendant is entitled to
1/8th or 9/72 share and the rest has to be divided between the plaintiff and other defendants.
Hence, she filed the suit.
5. The case of the plaintiff was resisted by the defendants and filed a written statement stating that it
is not correct to state that the plaintiff is in joint possession and enjoyment of the suit properties
along with the other defendants. The plaintiff's marriage has been conducted at the heavy expenses
from and out of the sale proceeds of the properties of the defendants. At the time of marriage, the
properties worth more than her share have been sold since the family of her husband is affluent and
very rich and as such, she has no share to be claimed in the suit properties and she must be deemed
to have relinquished her share. After marriage, the plaintiff developed a sort of superiority complex
and on account of economic imbalance between her and the defendants, the plaintiff gradually lost
her touch with the defendants' family and abandoned the properties and she has never been in
participation of the rents and profits from the suit lands. The 1st defendant has not only been in
exclusive possession and absolute enjoyment of the properties but there has also been in open and
unequivocal denial of the title of the plaintiff in respect of the suit properties. In fact, the 1st
defendant had alienated an extent of 0.90 cents of nanja lands in R.S.No.253/7B and another extent
of 0.96 cents of nanja lands included in the suit properties in utter exclusion and without reference
to the plaintiff under a sale deed dated 23.12.1974 to meet the marriage expenses of the 5th
defendant. Though the plaintiff was also aware of the said alienation, she never raised any objection
and as such, she has no right to the said properties. Apart from that, some of the items of the suit
lands have been leased out by the 1st defendant to the tenant and thereafter, they have been
surrendered to her by the tenant in 1967, which show that the 1st defendant has been exclusively
dealing with the properties without reference to the plaintiff. Though Kamaludeen died in 1963, the
plaintiff filed the present suit after 25 years, claiming partition. Moreover, the recent spurt in the
value of the suit properties, which were considered worthless decades ago, has led the plaintiff to file
the suit contrary to her earlier abandonment of her right of a share. Even if the plaintiff had any
such right, the same has been extinguished by ouster. Hence, they prayed for the dismissal of the
suit.
6. On the said pleadings, the trial court framed necessary issues and on the side of the plaintiff, she
examined herself as P.W.1 besides examining one Mohammed Rabi as P.W.2 and marked five
documents as Exs.A-1 to A-5 and on the side of the defendants, the 1st defendant examined herself
as D.W.1 besides examining one Kaliyamoorthy as D.W.2 and marked 23 documents as Exs.B-1 to
B-23. The trial court, after considering the entire evidence on record, both oral and documentary,
had granted a preliminary decree for partition and separate possession and directed the plaintiff to
take separate proceedings with regard to future profits. Challenging the said finding, defendants 1, 3
, 5 and 7 filed A.S.No.9 of 1997 on the file of Additional District Court, Nagapattinam, wherein the
appeal was dismissed by confirming the judgment and decree of the trial court. Against which, the
said defendants filed the present second appeal. During pendency of the second appeal, the 3rd
defendant, one of the daughters of the 1st defendant died, and her legal heirs were brought on
record as respondents 5 to 8.
7. At the time of admission of the second appeal, this Court has framed the following substantial
questions of law for consideration:
(1) Whether the courts below are right in concluding that the 1st respondent has not been ousted
from joint ownership and enjoyment ?
(2) Whether the suit filed is in time ?
8. Learned Counsel for defendants 1, 3, 5 and 7 (appellants) submitted that the 1st
respondent/plaintiff, after her marriage, lost her touch with the defendants' family and she
abandoned them as well as the properties. There are two items of properties in the suit schedule.
The first item consists 8 items of properties and the second item consists 2 items. The defendants
have alienated 0.90 cents of nanja land in R.S.No.253/7B and another extent of 0.96 of nanja land
in the suit properties without reference to the plaintiff by the sale deeds dated 22.06.1968 and
23.12.1974. Though the plaintiff had stated in the plaint that she gave consent for alienating the
property under Ex.B-1 under the sale deed dated 22.06.1968, a perusal of Ex.B-1 would show that
the plaintiff is not a party to that document and absolutely there is no signature of the plaintiff to
show that she has given consent to sell the said property by the 1st defendant. Similarly, the plaintiff
had stated that by Ex.B-2 dated 23.12.1974, the 1st defendant had sold 0.96 cents of nanja land and
she was not aware of the said transaction. The said statement of the plaintiff cannot be believed
because after sale, the possession went into the hands of purchaser. Though the sale took place in
the year 1974, the suit was filed in the year 1991. Therefore, the plaintiff's statement that she was not
aware of the sale for such a long period cannot be accepted. On the other hand, it is clear from
Exs.B-1 and B-2 that the plaintiff had allowed the defendants to sell the property without reference
to her and that she had been clearly ousted from the enjoyment of the properties and as such, she
has lost her right by reason of open assertion of hostile title coupled with exclusive possession and
enjoyment of the suit properties by the defendants to the knowledge of the plaintiff.
9. The learned counsel for defendants 1, 3, 5 and 7 further submitted that the plaintiff cannot deny
the knowledge of the registration of the sale deed. It is the basic principle of law that the registration
of the document is a notice to the entire world. Therefore, the knowledge of the plaintiff with regard
to the sale of the property by the defendants has to be taken into consideration from the date of
registration. Since, with the knowledge of the plaintiff, the defendants were going on selling the
property of Kamaludeen, the animus of the plaintiff is apparent that she has abandoned her right if
any in the suit properties. Therefore, even if she had any such right, the same has been extinguished
by ouster and, as such, the plaintiff is not entitled for partition. In support of the submissions, the
learned counsel has relied upon the decision reported in T.P.R.PALANIA PILLAI v. AMJATH
IBRAHIM ROWTHER (1942) 55 LW 532(2);
VALLIAMMAI ACHI vs. VELU SERVAI (74 L.W.742), ANJANABAI .vs. JASWANTIBAI & OTHERS
(CDJ 1992 BHC 026), VIDYADEVI .vs. PREM PRAKASH AND OTHERS ((1995) 4 SCC 496),
R.RAVICHANDRAN .vs. THE STATE OF TAMIL NADU (2002-2-L.W.590) and AYEESHA BIBI .vs.
S.MOHAMED IBRAHIM AND OTHERS (2002(4) CTC 545).
10. Combating the said submissions, the learned counsel for the plaintiff (the 1st respondent) would
submit that the the plaintiff has admitted that the property under Ex.B-1 dated 22.06.1968 was sold
only with her consent. Since it was sold with her consent, she has not included the said property in
the schedule of the plaint. Therefore, it is incorrect to state that the plaintiff had allowed the
defendants to sell the property without reference to her. So far as the property sold under Ex.B-2 is
concerned, the plaintiff came to know about the same only seven years prior to the filing of the suit.
Since the property was sold within the family i.e. to the husband of the 2nd defendant, she was not
in a position to know about the same much earlier. Therefore, it is incorrect to state that by her
conduct, the plaintiff had abandoned her right in the properties.
11. The learned counsel for the plaintiff further submitted that since the document has been
registered, it does not mean that it is a notice to the entire world and on the other hand, it is only a
constructive notice to a person, who subsequently acquired the property or interest or any part
thereof. Since the registration is a notice to the subsequent purchaser, it cannot be said that
registration is a notice to the co-owner also. In the instant case, the evidence on record would show
that the plaintiff came to know about the sale of the property under Ex.B-2 only seven years prior to
the suit and thereafter, she filed the suit for partition and hence, the question of ouster will not arise.
Only if the property is sold to a stranger to the knowledge of other co-owner and in spite of that, the
co-owner kept quiet, then only the application of the principle of ouster would arise. In the instant
case, the property was not sold to a stranger, but within the family members. In support of the
submissions, the learned counsel has also relied on the decisions reported in MOHAMMED ISMAIL
..vs.. KHADIRSA ROWTHER ((1982) 95 L.W.609), HEMAJI WAGHAJI JAT .vs. BHIKHABHAI
KHENGARBHAI HARIJAN ((2009) 16 SCC 517) and BONDER AND ANOTHER .VS. HEM SINGH
(DEAD) BY LRS. ((2009) 12 SCC 310).
12. This Court has carefully considered the submissions of learned counsel for the parties and
perused the records.
13. Basing upon the divergent submissions made by either counsel, the Court has to look into as to,
(1) Whether the right of the plaintiff in the suit properties has been extinguished by ouster ?
(2) Since the 1st defendant has been in exclusive enjoyment of the properties for a long a period,
whether the plaintiff has lost her right by reason of open assertion of hostile title coupled with
exclusive possession and enjoyment of the suit properties by the defendants ?
14. With regard to the first question, it is the submission of the learned counsel for the appellants
that the plaintiff has lost her touch with the defendants' family after her marriage and at the time of
marriage, the properties worth more than the share of the plaintiff have been sold and her marriage
was celebrated to her satisfaction. Moreover, two properties, one measuring 0.90 cents of nanja
lands in R.S.No.253/7B and another land measuring to an extent of 0.96 cents of nanja lands which
are included in the suit properties were sold under Exs.B-1 and B-2 in the years 1968 and 1974
respectively. It is further subsmitted that these properties were sold in utter exclusion and without
reference to the plaintiff and, therefore, the conduct of the plaintiff, by allowing the defendants to
sell the property without reference to her, would establish the animus of the plaintiff that she had
abandoned her right in the suit properties. Hence, by applying the principle of ouster, the suit filed
for partition ought to have been dismissed by the courts below.
15. On the contrary, it is the submission of the learned counsel for the plaintiff that only with her
consent, one of the properties was sold in the year 1968 for the performance of the marriage of one
of the daughters of the 1st defendant, and, therefore, the principle of ouster could not be applied
relying upon the sale deed marked as Ex.B-1. With regard to the next document Ex.B-2, it is the
contention of the plaintiff that since by virtue of the said document, the property was sold within the
family members i.e.to the husband of the 2nd defendant and only in those circumstances, she was
not in a position to know the transaction and she came to know about the sale only seven years prior
to the filing of the suit and thereafter, she filed the suit.
16. The learned counsel for defendants 1, 3, 5 and 7, by inviting the attention of this Court to Ex.B-1
sale deed dated 22.06.1968, submitted that in the said sale deed, there is no signature of the plaintiff
and hence, the case put forth by the plaintiff that she had given consent to sell the property could
not be accepted. On the other hand, the said document shows that the plaintiff had allowed the
defendants to sell the property without reference to her. But on going through the pleadings of the
plaintiff, I find that it is the definite case of the plaintiff that only on her consent, the property was
sold under Ex.B-1. P.W.1, in her cross examination, had stated that she had also signed the
document, but, as contended by the learned counsel for the appellants, there is no signature of the
plaintiff in Ex.B-1. It is to be noted that though there is no signature in Ex.B-1, the very factum that
the plaintiff has not included the said property in the suit schedule, would support her case that only
on her concurrence, the property ought to have been sold.

17. So far as the property sold under Ex.B-2 is concerned, the case of the plaintiff that since the said
property was sold within the family members i.e. the husband of the 2nd defendant, the plaintiff was
not in a position to know about the said sale and she came to know the same only seven years prior
to the filing of the suit, cannot be negatived. Now it is the submission of the learned counsel for
defendants 1, 3, 5 and 7 in this appeal that irrespective of the case put forth by the defendants with
regard to the plaintiff's knowledge about the sale by the defendants, under law, knowledge with
regard to the sale has to be taken into consideration from the date of registration since the
registration of the document is a notice to the entire world. Though the sale took place under
Exs.B-1 and B-2 in the years 1968 and 1974 respectively, she had filed the suit only in the year 1991.
Therefore, since she had kept quiet from the date of registration of the sale nearly for a period of 22
years, it is apparent that by allowing the defendants to sell the property, she waived her right, if any,
in the suit properties. Moreover, by open assertion of hostile title coupled with exclusive possession
and enjoyment of the suit properties by the defendants denying the title of the plaintiff, the
defendants had prescribed title over the suit properties. It would be appropriate at this stage to rely
on the judgments relied on by defendants 1, 3, 5 and 7. In (1942) 55 LW 532 (2), a Full Bench of this
Court has held as follows:
"In Sheik Abdul Gafur v. Ashamath Bibi, a Bench of this Court (Seshagiri Aiyar and Moore, JJ.) held
that possession of an alienee from one of several co-tenants becomes adverse as against the other
co-tenants from the moment of the entry into-possession by the alienee. This judgment was based
on the decisions of this Court in Secretary of State v. Vira Rayan (1885) I.L.R. 9 Mad. 175. and
Muthusami v. Ramakrishnal (1889) I.L.R. 12 Mad. 292. and the judgment of the Full Bench of the
Bombay High Court which decided Bhavrao v. Rakhmin (1898) I.L.R. 23 Bom. 137 (F.B.). and the
judgment of the Bench of the Calcutta High Court which decided Jogendra Nath Rai v. Baladeo Das
(1907) I.L.R. 35 Cal. 961. In Secretary of State v. Vira Rayan, (1885) I.L.R. 9 Mad. 175. Turner, C.J.
and Muttuswami Aiyar, J., held that the ignorance of the owner would not prevent the accrual of
title by prescription and in Muttusami v. Ramakrishna (1889) I.L.R. 12 Mad. Muttuswami Aiyar, J.,
sitting with Wilkinson, J., held that the contention that the possession of one coparcener was the
possession of all for purposes of limitation could have no application as between a purchaser from
one coparcener and the other-members of the family. The plaintiffs in that case were members of a
joint Hindu family, who alleged that there had been a partition and a sale to them by the other
members of a share in the family properties more than twelve years before the suit, and they
claimed to eject a more recent purchaser. The plaintiffs did not prove that there had been a partition
and it was held that the suit was barred. Decisions of this Court to the same effect were given in
Linga Munisami Reddi v. Govindaswami Naicken (1921) 42 M.L.J. 364. and Palaniappa Chetty v.
Raman Chetty (1933) 39 L.W. 161.
In the Bombay case, Bhavrao v. Bakhmin (1898) I.L.R. 23 Bom. 137 (F.B.). the question was asked
what was the purchaser's position with reference to a coparcener's vendor or mortgagor and the
answer given was:
"As he enters, as owner and in right of his conveyance, his possession is adverse to them also. In the
eye of the law, all the coparceners, though for the sake of convenience they may be in separate
possession of portions of the joint estate, are the owners of the whole estate including the alienated
portion. It may be and indeed is the case that such a purchaser by his purchase does not get a good
title to the land conveyed to him by a single coparcener, but only the qualified right laid down in
Pandrang v. Bhaskar (1871) 11 Bom.H.C.R. 72. and he is liable under some circumstances even to be
evicted if the coparceners take the requisite steps within the statutory period. Nevertheless his
exclusive possession does not on that account cease to be adverse. He, entering as owner, his
possession must, we think, necessarily be adverse to the true owners. Adverse possession depends
upon 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".
With these observations we find ourselves in complete agreement".
18. In 1974 L.W.742 (supra), a Division Bench of this Court has held as follows:
"Mr. Natesan who appeared for the respondents referred to us the decision reported in
Chennabasavaq Gowd v. Mahabaleswarappa (1954) 1 M.L.J. 714 : (1954) S.C.J. 475 : 1 S.C.R. 131
(S.C.). In that case the father and his infant son were entitled as co-owners to a particular item of
property. The father so conducted himself as to show that the property belonged solely to his infant
son. Indeed he executed a lease of the entire property for a period of 12 years describing it as the
property of his minor son alone. The Supreme Court held that in granting the lease on behalf of the
infant, the father definitely asserted exclusive title of his son to the property by implication and
denied his own rights as co-owner thereof. The possession of the lessee was, therefore, held to be
possession of the minor son; that amounting to an ouster, it was held that the father lost title to his
half share. In that case there was something more than mere exclusive enjoyment by a co-owner of
the entirety of the property. There was an alienation by way of lease of the property in favour of a
stranger, an open repudiation of the co-sharer's title.
The probative value of that alienation was that to the knowledge of the other co-sharer there was a
denial of his title by the alienating co-sharer. That would, in law, amount to an ouster. In the present
case there has been no such alienation of the property except within 12 years of the present suit. The
suit itself was filed within five years of the alienation. No question of ouster amounting to adverse
possession by the alienee for the statutory period does at all arise in the present case".
19. In CDJ 1992 BHC 026 (supra), the Bombay High Court has held as follows:
"23. The purchasers (the defendants) on the other hand rely upon the Full Bench decision of this
Court in Bhavrao v. Rakhmin, (1899) 1LR 23 Bom, 137. Where coparceners have alienated their
shares in the joint family property by sale and mortgage and the alienees have been in possession for
more than 12 years, a claim for partition, as against such alienees, is barred by limitation under
Article 144 of the Limitation Act. We have extracted the relevant portion as under :
"What, then, is the purchaser's position with reference to the coparceners of his vendor or
mortgagor? The answer, we think, must be that, as he enters as owner and in right of his
conveyance, his possession is adverse to them also. In the eye of the law, all the coparceners, though
for the sake of convenience they may be in separate possession of portions of the joint estate, are the
owners of the whole estate including the alienated portion. It may be and indeed is the case that
such a purchaser by his purchase does not get a good title to the land conveyed to him by a single
coparcener, but only the qualified right laid down in Pandurang v. Bhaskar, (1874 , (11) Bom HCR
72) (supra), and he is liable under some circumstances even to be evicted if the coparceners take the
requisite steps within the statutory period. Nevertheless his exclusive possession does not on that
account cease to be adverse. He, entering as owner, his possession must, we think, necessarily be
adverse to the true owners. Adverse possession depends upon 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. "Adverse possession is possession by a person holding
the land, on his own behalf, or of some person other than the true owner" -- Per Markby, J., in Bejoy
Chunder v. Kally Prospnno, (1879 ILR 4 Cal 327). In favour of such a holder limitation begins to run
from the date of his possession, provided the true owner is not under disability and is capable of
suing."
24. The decision of the Full Bench in Bhavro's case (1899 ILR 23 Bom 137) would squarely apply to
the facts involved in the present case. The very fact that the stranger has been inducted into
possession and consequently, the possession of the co-owners terminated would be sufficient to put
the other co-owners to notice of the conduct of the alienating co-owners. Therefore, ouster would be
to their notice and the possession of transferee would be adverse from the date of possession. In this
connection, it will also be worthwhile to refer to the case of Khato Lal Das v. Mohd. Jahiruddin
Babar, AIR 1984 Patna239 or even Full Bench decision of Madras High Court in T.P.R. Palania Pillai
v. Amjath Ibrahim Rowther, AIR 1942 Madras 622. It is thus apparent that Vishwa nath Gokhale's
case AIR 1960 Bombay 50, relied upon by the plaintiffs, is distinguishable on facts and can be of no
assistance to the plaintiffs. In our view, the suit filed by the plaintiffs - the three daughters of Durgaji
is clearly barred by limitation. Civil Suit No. 177 of 1975 hence deserves to be dismissed on this
ground alone. Fearing this outcome, the plaintiffs deliberately disclosed the date of registration of
the sale deed as 25-2-1963 in their plaint for misleading the other parties as well as the Court while
deciding this point".
20. In (1995) 4 SCC 496 (supra), the Hon'ble Apex Cort has held as follows:
"28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however,
not be complete unless it is coupled with all other ingredients required to constitute adverse
possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the
case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession
of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the
knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession
against another co-owner who can, of course, file appropriate suit including suit for joint possession
within time prescribed by law".
21. In 2002-2-L.W.590, this Court has observed as follows:

"26. On the registration of a document being complete, according to Section 61(2) of the Act and if
there is omissions of the document from the index, it will not invalidate the registration as such, but
it is a matter of importance for the purpose of notice. The provision of registering a document is to
give notice to the whole world that such a document has been executed and is in force. The
registration of a document is a constructive notice.
27. Under Explanation (1) of Section 3 of the Transfer of Property Act, a person shall be deemed to
have notice of an instrument from the date of registration where any transfer relating to immovable
property is required to be brought to and been effected by a registered instrument. In terms of
Section 50 of the Registration Act read with section 3 of the Transfer of Property Act the very
registration of a document required to be registered constitutes a notice. The effect of registration of
a sale deed is a notice to the whole world in respect of the property, which is the subject matter of
the deed of conveyance or sale or transfer, mortgage etc., as the case may be".
22. In 2002(4) CTC 545 (supra), this Court has held as follows:
"21. It is settled law that the possession of a co-owner cannot be considered to be adverse to the
other co-owner. The entry and possession of a land by one co-owner is not presumed to be adverse.
The possession becomes different when the title of some of the members has been denied and their
right of enjoyment of the properties has been repudiated to their knowledge. From that moment, the
character of the possession of the hostile co-owner changes and it becomes adverse possession who
have knowledge of the ouster and the limitation time began to run against them".
23. By relying upon the above judgments, it is submitted by the learned counsel for defendants 1, 3,
5 and 7 that the date of knowledge of the alienation of the property began from the date of
registration. In the instant case also, the plaintiff's knowledge with regard to the sale is taken into
consideration from the date of registration since the properties were sold by the defendants without
reference to the plaintiff, the case of the defendants that the plaintiff has waived her right in the suit
properties has to be accepted. Moreover, by open assertion of hostile title coupled with exclusive
possession and enjoyment of the suit properties by the defendants and the denial of title by the
co-owners, the defendants prescribed title by way of adverse possession.
24. Countering the said submissions made by the learned counsel for the appellants, the learned
counsel for the plaintiff submitted that the registration is a constructive notice only to the person
acquiring such property or part or share or interest in such a property, but it cannot be said that the
registration is a notice to the entire world. In this regard, the learned counsel relied upon the
judgment reported in 2002-2-L.W.590 (supra), wherein it has been held as follows:
"37. The legal position is well settled in that every document affecting an immovable property as
provided in section 17 has to be registered so that any person who wants to deal or desire to acquire
interest with such property could find out encumbrances if any, the legal obligations, rights and
ownership or claim over such property, and registration acts as constructive notice to a person who
subsequently acquires such property or interest or any part thereof or interest or fraction of interest
thereof".
25. The learned counsel for the plaintiff further submitted that in the instant case, it has been
admitted that the property was sold with the consent of the plaintiff under Ex.B-1. So far as the
second property, which was included as item No.6 in Schedule-I of the plaint had been sold to one
Amanullah, the son-in-law of the 1st defendant, who is the husband of the 2nd defendant. The said
son-in-law of the 1st defendant cannot be construed as a stranger. As could be seen from the
judgments relied on by the learned counsel for the appellants that they are relating to the alienation
of the property by a co-sharer to the strangers. Only if the property was alienated to a stranger
denying the title of the co-sharer, the principle of adverse possession could be applied.
26. It is the further case of the plaintiff that between the co-sharers, there must be evidence of open
assertion of hostile title coupled with exclusive possession and enjoyment of one of them to the
knowledge of the other, so as to constitute the ouster. But, in the instant case, absolutely, there is no
evidence with regard to the open assertion of hostile title, coupled with exclusive possession and
enjoyment by one of them. In this regard, the learned counsel for the plaintiff relied on the decision
reported in (2009) 16 SCC 517, and the relevant paragraphs are extracted hereunder:
"19. In Md. Mohammad Ali (Dead) By LRs. v. Jagadish Kalita & Others (2004) 1 SCC 271, paras
21-22, this Court observed as under:
"21. For the purpose of proving adverse possession/ouster, the defendant must also prove animus
possidendi.
22. ....We may further observe that in a proper case the court may have to construe the entire
pleadings so as to come to a conclusion as to whether the proper plea of adverse possession has been
raised in the written statement or not which can also be gathered from the cumulative effect of the
averments made therein."
20. In Karnataka Board of Wakf v. Govt. of India (2004) 10 SCC 779 at para 11, this court observed
as under:- (SCC p.785) "11. In the eye of the law, an owner would be deemed to be in possession of a
property so long as there is no intrusion. Non-use of the property by the owner even for a long time
won't affect his title. But the position will be altered when another person takes possession of the
property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting
hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming
adverse possession must prove that his possession is "nec vi, nec clam, nec precario", that is,
peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in
extent to show that their possession is adverse to the true owner. It must start with a wrongful
disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the
statutory period."
The court further observed that: (SCC p.785, para 11) "11. ...Plea of adverse possession is not a pure
question of law but a blended one of fact and law. Therefore, a person who claims adverse
10
possession should show: (a) on what date he came into possession, (b) what was the nature of his
possession, (c) whether the factum of possession was known to the other party, (d) how long his
possession has continued, and (e) his possession was open and undisturbed. A person pleading
adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true
owner, it is for him to clearly plead and establish all facts necessary to establish his adverse
possession.
.....
32. Before parting with this case, we deem it appropriate to observe that the law of adverse
possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and
wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for
a dishonest person who had illegally taken possession of the property of the true owner. The law
ought not to benefit a person who in a clandestine manner takes possession of the property of the
owner in contravention of law. This in substance would mean that the law gives seal of approval to
the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the
property of the true owner".
27. A Division Bench of this Court in (1982) 95 L.W.609 (supra) has held as follows:
"13. In the light of the above legal background we will now proceed to analyse the facts. The oral
partition has absolutely no locus standi in view of the finding of the learned Subordinate Judge in
this aspect. There is no evidence whatever, Ex. B-1 cannot advance the case of the appellants
because admittedly the plaintiffs were not parties. In fact the very case of the appellants is that
Kathija Bibi was given costly presents during her marriage. No doubt in 1954, itself there was an
oath under Ex B-102 in favour of the 9th defendant and alienation under Ex. B-103 in favour of the
10th defendant. But as rightly pointed out by the learned Subordinate Judge, not one of them could
ever be held to be binding because there is nothing to suggest or even to indicate indirectly that the
plaintiffs had knowledge of these transactions. What has been laid down in all the above cases is the
assertion of hostile title must be to the knowledge of the plaintiff. That is exactly the distinction
between the case of adverse possession between the co-owners and adverse possession between the
strangers. Mere possession by the appellants and the 6th defendant however long cannot constitute
ouster. Equally the non-participation in the income also cannot imply ouster. As laid down in P.
Lakshmi Reddi v. L. Lakshmi Reddi,(1957 SCJ 248) that must be to the knowledge of the opposite
party. We are totally unable to find any knowledge whatever that can be attributed to the plaintiffs.
As rightly held by the learned Subordinate Judge, that the plaintiffs and the defendants 3 to 5 were
never aware of these dealings. We are in entire agreement with the following finding of the learned
Subordinate Judge"The parrot like version of defendants 1 and 6 as well as some of the alienees that the plaintiffs and
defendants 3 to 5 are aware of the alienations cannot be readily accepted. The plaintiffs and the
third defendant are permanent residents of Thottanampatti while defendants 4 and 5 are permanent
residents of Nandanagampatti and Nallur, Vridhachalam Taluk, South Arcot. In the nature of
things, they could not have been aware of the alienations. Kathija Bivi and later her heirs are
11
co-sharers along with defendants 1, 2 and 6 all are jointly entitled to the properties. Each of them
has a right to the properties. Mere possession does not necessarily, imply denial of title of
co-owners. If Kathija Bibi and later her heirs found no occasion to effectively enjoy the properties,
they need not mind the possession of defendants 1, 2 and 6. In the eye of law, they are deemed to be
in constructive possession of the joint properties. The materials available on record do not in the
least show that the title of Kathija Bibi and/or her heirs had ever been repudiated to their
knowledge. It is only from the date of such repudiation to the knowledge of the other co-sharers, the
character changes and it becomes adverse against those who have knowledge of the ouster and time
begins to run against them. This essential ingredient is significantly absent in the instant case. It
cannot therefore be said by any stretch of imagination that defendants 1, 2 and 6 have in any event
prescribed title to the properties by adverse possession by means of assertion of adverse title
accompanied by ouster and exclusion of the plaintiffs and defendants 3 to 5 to their knowledge. The
plea of ouster relied on by defendants 1, 2 and 6 is thus not available to them and it is even
untenable."
16. Accordingly we hold on point No. 3 that the plea of ouster by the appellants has not been made
out.
28. The Hon'ble Supreme Court in (2009) 12 SCC 310 (supra), has held hereunder:
"11. The first appellate court relied upon the decision in P.Lakshmi Reddy v. L.Lakshmi Reddy (AIR
1957 SC 314) at para 4, wherein this Court referred to the decision in Corea v. Appuhamy (1912 AC
230 (PC). In the said case, the principle of law has been clearly enunciated. The relevant portion of
the said judgment reads as under:
"4. ...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. ... 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 the other co-heir's title. ... 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 knowledge of the other so as to constitute ouster".
29. On going through the dictum laid down in the above judgments relied on either side, I am of the
opinion that the registration of document is only a constructive notice to a person, who
subsequently acquired that property or interest or any part thereof or interest or fraction of interest
thereof. In this regard, it would be proper to refer Explanation I of Section 3 of the Transfer of
Property Act, which reads as follows:
"Where any transaction relating to immovable property is required by law to be and has been
effected by a registered instrument, any person acquiring such property or any part of, or share or
interest in, such property shall be deemed to have notice of such instrument as from the date of
12
registration or, ....."

Thus, it is clear that the registration is only a constructive notice to the person who has subsequently
acquired such property. If the submission of the learned counsel for defendants 1,3,5 and 7 that the
registration is a notice to the entire world is accepted, it would defeat the legitimate right of the
co-sharers when the property was sold without their knowledge. Further, I find that the subject
property was sold only within the family members and therefore, as contended by the learned
counsel for the plaintiff, she might have been in a position to know about the same only at a later
point of time. Moreover, the judgments relied upon by the appellants deal with the alienation of the
property to the strangers. Further, I do not find any evidence in this case with regard to open
assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the
knowledge of other co-owner, namely, the plaintiff in this case so as to constitute ouster. Therefore,
in my considered opinion, the principle of ouster cannot be applied in this case. The courts below
have correctly appreciated the evidence and the documents adduced by the parties. The concurrent
findings of the courts below reflect the evidence on record. The reasonings and findings do not
suffer from any infirmity warranting interference. Under such circumstances, this Court has no
hesitation in upholding the preliminary decree as passed by the trial court and the appeal has no
merits and is bound to fail and the substantial questions of law are answered in favour of the
plaintiff.
In fine, the second appeal fails and is dismissed. No costs.
Index: Yes.
Internet: Yes.
gl
To
1. The Additional District Judge,
Nagapattinam.
27.04.2011
2. The Additional Subordinate Judge,

Mayiladuthurai.
Copy to:
The Section Officer,
V.R.Section, High Court,Madras.
R.SUBBIAH, J.,
gl
Pre-delivery judgment in S.A.No.339 of 1998
13
27.04.2011
14

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Arabia Bibi Vs Sarbunnisa On 27 April, 2011

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