Full Judgment Text
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KULDIP MAHA TQN AND ORS .
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Hindu law-Inh erit ance
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M inherited certain property from her husband Bas limited owner
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to ojoysthe ,, property for life. She died before the Hindu Women' s )
Right to Property Act, 1937 came into force. On her death, succession
to the said property opened to the reversioners i.e. the first respondent
and the appellants. They became co-owners of the property. The first
respondent claimed that he was adopted by M when he was young and
he was entitle to the possession of the property in his own right as the
adopted son of 8, and that the appellants were not entitled to the
possession. The Trial Co urt decreed the suit in favour l>f th«: first
respondent, but the appellate court disbelieved the version. However it
also dismissed that suit on the finding that the first respondent had
acqui re d tit le to the property by prescription. The second appeal was
dismissed by the High Court. Hence this appeal.
E
F
Allowing the appeal, this Court
HELD : 1. is not the case of the first respondent as found by the
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appellate court, that after the succession to the reversioner was opened
on the demise of M, he ousted the appellant from possession of the
lands or he had set up his own hostile title to the knowledge of the
reversio ner s, namely, the appellants and they had acquiesced to that
exercise of the right. In the absence of such a pleading and proof,
necessary presumption is that all the co-owners continued to be owners
of the prop e rt y and the first respondent remained in possession of the
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220
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CounJ ar d as1cre. ne suit must be re ~ tea o be one for l!artitiop.
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222 SUPREME C OURT REPORTS (1994] SUPP . 6 S. C.R
One Upasi Mahto is the common ancestor. He had four sons, out of
them Mohit Mahto and Chaturi are his first and third sons. Fargudi and
Sukan pre-deceased him leaving no heirs . Therefore , the question of their
genealogy does not arise. Mohit Mahto had two sons, namely , Bigu and
Bihari, Bigu died. Bigu 's wife is Smt. Munnia. Chaturi had two sons , Deni
M ahto and Raghubir. First defendant Bhulan is the son of Deni Mahto .
Raghubir's children are th e plaintiffs/appellants before us . The appellants
laid a suit against the Bhulan and his alienees claiming title to and
poss e ssion of the suit property inherited by their father Raghubir Mahto or
in the alternative to get the land of Munnia on her demise as reversioners. It
is the case of Bhulan , the first defendant, that he was adopted by Munnia,
widow of Bigu when he was young and he was entitled to the possession of
the property in his own right as an adopted son of Bigu . Therefore , the
appellants are not entitled to the po ssession. Though the trial court decreed
the suit, the appellate court while disbelieving the version of the Bhulan
held that he was not the adopted son of Munnia and that the appellants
would get the property as reversioners. But it had dismissed the suit on the
finding that Bhulan had acquired title to the property by prescription.
Therefore, the appellants are not entitled to the possession. The second
Appeal No . 51175 was dismissed by the High Court of Patna in limine on
August 3, 1977 . Thus this appeal by special leave.
A
B
c
D
The undisputed facts that emerge from the findings and the genealogy
are that Munnia inherited the property of Bigu as limited owner to enjoy the
property for her life. Adm ittedly, she died in 1932 before the Hindu
Women's Right to Property Act, 1937 had come into force. On her demise ,
succession to the property held by Bigu opened to the reversioners i.e. both
the respondent / 1st defendant and the appellants . Thereby , they become co-
owners of the prop erty left by Munnia . It is not the case of Bhulan, as found
by the appellate court, that after the success i on to the reversioner was
opened on the demise of Munnia, he ousted the appellant from possession
of the lands or he had set up his own hostile title to the knowledge of the
reversioners , namely , the appellants and they had acquiesced to that
exercise of the right. In the absence of such a pleading and proof, necessary
presumption is that all the co-owners continued to be owners of the
property an d Bhulan remained in possession of the suit property as co-
owner . It is settled law that one co-owner cannot plead adverse possession
against another co-owner unless , as stated earlier, there is an express plea
and proof of hostile title asserted to and remained in possession in assertion
of that right to the knowledge of the appellants . ln the absence of such a
pleading and proof, the finding of the appellate court tQ.at Bhutan had
acquired the title to the property by prescription is clearly illegal.
E
F
G
H
KULDIP MAHA TON v. BHULAN MAHTO
223
Since the findings of adverse possession is not sustainable , what would A
be the relief that could be granted in the suit is the question. The appellants
claimed possession as owner s. In view of the above finding, they have title
as reversioners of Bigu for undivided half share in the plaint schedule
properties while Bhulan had half share in the property . Therefore, the
decree of the trial court, appellate court and the High Court are set aside.
The suit must be treated to be one for partition. There shall be a preliminary
B
decree in this t?ehalf with mesne profits for three years prior to date of suit.
The trial court is directed to draw the final decree on an application to be
made in this behalf by the appellants and enquiry iI1to mesne profits should
be conducted. During the pendency of this appeal , respondent Nos. 4 to 6
died. By an order of this Court dated February 11 , 1991, since the Legal
Representatives of Respondent Nos . 4 to 6 were not brought on record , the C
appeal as against them stood dismissed . Since they are purchasers from the
first defendant , the property sold to them stood now allotted to his share
and must be computed to the share of the first defendant. EquaJly of the
lands sold to other defendants/respondents do not bind the appellants. The
lands sold to them is in excess of the share of Bhulan . The Trial Court
should work-out the rights of the purchasers equitably among themselves , D
determine their liabilities to the appellants. ln drawing the final decree and
allotting the properties, the court should take into consideration of quality
and value of the property . A decree for payment of compensation to the
appellants be made . Enquiry into mesn e profits be made and a final decree
should be passed accordingly within one year from the date of making the
application . The appeal is accordingly allowed . Parties are directed to bear E
their own respective costs through out.
G.N . Appeal allowed.