Momy Abraham v. Lilly Jose

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** **WEDNESDAY, THE 11TH DAY OF JANUARY 2012/21ST POUSHA 1933** **RSA.NO. 1360 OF 2004 (A)** **--------------------------------------** **AS.332/2003 OF FIRST ADDITIONAL DISTRICT COURT, THRISSUR OS.479/1999 OF PRINCIPAL SUB COURT,THRISSUR** ## **APPELLANT(S)/APPELLANT/APPELLANT/PLAINTIFF:** **---------------------------------------------------------------------------** **MOMY ABRAHAM, AGED 35, S/O. ITTY ABRAHAM, CHRUVATHUR HOUSE MALLIPADAM DESOM, THRISSUR TALUK.** **BY ADVS.SRI.S.VINOD BHAT SRI.M.M.ALIAS** **RESPONDENT(S)/RESPONDENT/DEFENDANT:** **------------------------------------------------------------------** **LILLY JOSE, D/O. PULIKOTIL VARGHESE AND W/O. THANIKAL JOSE, C.R.IYYUNNI ROAD CHEMBUKAVU VILLAGE, THRISSUR TALUK.** **R, BY SRI.S.V.BALAKRISHNA IYER (SR.) R, BY SRI.K.JAYAKUMAR (SR.) R, BY SRI.P.B.KRISHNAN R, BY SRI.HARISH R. MENON** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.1360 of 2004 ==================================== Dated this the 12[th] day of January, 2012** ## **J U D G M E N T** Though substantial questions of law required to be decided in this Second Appeal have already been framed, after hearing learned Senior Advocates on both sides the substantial questions of law to be decided are recast as under: i) Whether in law, facts and evidence respondent is entitled to contend that there was an implied consent for transfer of share of the father of appellant in the suit property? ii) Whether plea of adverse possession raised by the respondent is inconsistent with the plea of implied consent and whether on the facts and evidence respondent is entitled to plead that she has perfected title over the property as regards the share of father of the appellant as well by adverse possession and limitation? 2. These questions arise in the Second Appeal arising from the judgment and decree of learned Additional District ## **R.S.A. No.1360 of 2004** -: 2 :- Judge, Thrissur in A.S. No.332 of 2003. That appeal in turn, arose from the judgment and decree of learned Principal Sub Judge, Thrissur in O.S. No.479 of 1999. Appellant sued the respondent for partition and separate possession of the half share he claimed in the said property. The suit property – 17.5 cents in Sy. No.3049/1 of Chembukavu Village formed part of 90.719 cents acquired by Itty Abraham and his brother, Paul as per Ext.A1, assignment deed No.930/1965 dated 01.04.1965. Itty Abraham settled his half right in the suit property in favour of appellant, his son as per Ext.A2, settlement deed dated 14.07.1997. On the strength of Ext.A2, settlement deed appellant demanded partition and separate possession of his half share by Ext.A3, notice to which respondent replied by Ext.A4, denying the demand for partition. Thereon appellant filed O.S. No.479 of 1999. 3. Respondent contended that the suit property formed part of 90.719 cents covered by Ext.A1, assignment deed in favour of Itty Abraham and his brother, Paul and while they were in joint ownership and possession of the said 90.719 cents, they entered into Ext.B2, agreement for sale of the said property with the husband of respondent and three others. Pursuant to that **R.S.A. No.1360 of 2004** ## -: 3 :- agreement, portions of 90.719 cents were assigned either in favour of proposed purchasers under Ext.B2, agreement or their nominees as per Ext.B1 and B9 to B12, assignment deeds. The entire sale consideration payable for the 90.719 cents as per Ext.B2, agreement had been paid to Itty Abraham and Paul. While so, Paul executed Ext.B3, assignment deed in favour of respondent regarding the suit property. Respondent contended that Ext.B3 was executed by Paul with the implied consent of Itty Abraham and thus she got absolute right over the suit property. It is further contended that at any rate right if any, of Itty Abraham in the suit property is lost by adverse possession and the law limitation and that respondent has perfected title over the entire property. Exhibit A2, agreement was created in favour of the appellant only to facilitate a suit for partition. 4. The trial court held that since possession claimed by the respondent is traceable to Ext.B2, agreement for sale executed by Itty Abraham and Paul and Ext.B3, assignment deed executed by Paul (allegedly with the implied consent of Itty Abraham as well), plea of adverse possession cannot stand. Trial court dismissed the suit holding that Ext.B3, assignment deed was executed by Paul with the implied consent of Itty Abraham. ## **R.S.A. No.1360 of 2004** ## -: 4 :- Appellant challenged dismissal of the suit in A.S. No.332 of 2003. Learned Additional District Judge concurred with the finding of the trial court regarding implied consent of Itty Abraham in the execution of Ext.B3, assignment deed. The first appellate court was of the view that the plea of adverse possession is inconsistent with the plea of implied consent and hence cannot stand. The first appellate court found that on evidence also plea of adverse possession cannot be successfully raised by the respondent. The result was a dismissal of the appeal in confirmation of judgment and decree of the trial court. Judgment and decree of the courts below are under challenge on the substantial questions of law which I have this day framed. ## **Point No.1.** 5. Learned Senior Advocate has contended that the plea of implied consent is not available to the respondent under law. According to the learned Senior Advocate, the only circumstance where there could be an assignment of property by implied consent is in situation covered by Section 41 of the Transfer of Property Act (for short, “the Act”). In this case Paul, the joint owner assigned only his share in the suit property as per Ext.B3 in favour of respondent and at any rate, not as ostensible ## **R.S.A. No.1360 of 2004** ## -: 5 :- owner of the property at least to the extent it concerned the share of Itty Abraham. Hence the plea of implied consent does not arise. It is contended by the learned Senior Advocate that in view of averments in paragraph 3 of the written statement, plea of implied consent cannot stand for a moment. It is pointed out though courts below have placed reliance on Exts.B1 and B9 to B12 to find implied consent in the matter of execution of Ext.B3, assignment deed, those documents are all prior to Ext.B3 and in the nature of circumstances respondent has pleaded in paragraph 3 of the written statement which is subsequent to Exts.B1 and B9 to B12, those documents cannot be taken into account to hold in favour of implied consent of Itty Abraham in executing Ext.B3, assignment deed. 6. Learned Senior Advocate for respondent in response contended that contention raised in paragraph 3 of the written statement cannot be culled out from various contentions respondent has raised in the written statement. According to the learned Senior Advocate, paragraph 3 in the written statement has to be read along with the entire plea raised by the respondent. It is pointed out by learned Senior Advocate that though Ext.A1, assignment deed in favour of Itty Abraham and ## **R.S.A. No.1360 of 2004** ## -: 6 :- Paul is for a larger extent of 90.719 cents, except the suit property the remaining portion of that 90.719 cents was assigned in favour of the husband of respondent or other persons referred to in Ext.B2 or their nominees by Exts.B1 and B9 to B12, but there is no mention of that in the plaint. On the other hand, plaint proceeds as if the only property which belonged to Itty Abraham and Paul is the suit property - 17.5 cents. According to the learned Senior Advocate, non-mention of the entire facts and circumstances including execution of Ext.B2, agreement for sale and Ext.B1 and Exts.B9 to B12 assignment deeds must also be taken into account while considering the plea of respondent. 7. Primarily I am to consider whether there could be an implied consent in the matter of assignment of property as per Ext.B3. Exhibit B3 is executed by Paul who admittedly had only half right in the suit property. It is stated in Ext.B3 that he assigned his half share in the suit property to the respondent. In the later part of Ext.B3 it is stated that the suit property is given into the possession of respondent. Going by Ext.B3, the right, title, interest and possession which Paul has conveyed to the respondent is only of his half share in the suit property. Exhibit B3 does not say that the right, title and interest of Itty Abraham **R.S.A. No.1360 of 2004** -: 7 :- in the suit property is also assigned in favour of the respondent. Nor does Ext.B3 indicate that there was any implied consent of Itty Abraham in Paul executing the said document. 8. Section 41 of the T.P. Act deals with transfer by ostensible owner and reads: ## “41. **Transfer by ostensible owner** .- Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith”. ## 9. A learned Judge of this Court in **Unneenkutty v.** **Taluk Land Board** (1988 [1] KLT 574) has observed that it is open to one co-sharer to authorize sale of his share in coownership property and such authorization may either be ## **R.S.A. No.1360 of 2004** ## -: 8 :- express or implied. That was a case relating to ceiling area under the Kerala Land Reforms Act. Petitioner filed Civil Revision contending that his brother had sold 37.23 acres as per document No.2568 of 1950 and the said assignment must be treated as on his behalf as well so that there would be exemption from the ceiling limit. Learned Judge, to hold so, referred to the decisions in **Appasamy v. Sundaram** (AIR 1936 Madras 696) and **Saidali v. Amina Umma** (1984 KLT SN 58 [Case No.99]) which dealt with the principle that when a co-sharer obtains a purchase certificate in his name, that is presumed to be on behalf of other co-sharers as well and that the co-sharer obtaining such purchase certificate will be treated as a trustee on behalf of other co-sharers. 10. In a later decision - **Krishna Iyer v. Parvathi Ammal** (1988 [2] KLJ 156) another learned Judge of this Court observed in paragraph 18 of the said decision that though estoppel is only a rule of evidence it may have in some cases the effect of creating substantive rights or defeating rights as against the person estopped. In such cases it is not merely a rule of evidence but a rule creating or defeating rights. Normally admission, acquiescence or estoppel will not operate to convey ## **R.S.A. No.1360 of 2004** ## -: 9 :- title. Estoppel as a source of title could only be under S.43 of the Transfer of Property Act. Section 43 of the TP Act deals with transfer by unauthorized person who subsequently acquires interest in the property transferred. There, the principal of estoppel feeding the grant is stated. In the present case Sec.41 or 43 of the TP Act has no application. Viewed in that line, it appears to me that there could be no implied consent for transfer of share of Itty Abraham as pleaded by the respondent. 11. Next question is whether on the facts pleaded, respondent could successfully contend that Ext.B3, assignment is executed with the implied consent of Itty Abraham as well. As pointed out by the learned Senior Advocate for respondent and as averred in the written statement it is not disputed that by Ext.A1, assignment deed dated 01.04.1965 Itty Abraham and his brother, Paul jointly acquired 90.719 cents. Exhibit B2 shows that Itty Abraham and Paul had entered into agreement for sale of the said 90.719 cents with the husband of respondent and others. It is not in dispute that except the suit property, the remaining extent of 90.719 was sold as per Ext.B1 dated 28.03.1980, Ext.B11 dated 23.12.1982, Ext.B12 dated 17.12.1982 and Exts.B9 and B10 dated 17.12.1983. After the ## **R.S.A. No.1360 of 2004** ## -: 10 :- said assignments what remained is only the suit property – 17.5 cents. It is also in evidence that the sale consideration payable as per Ext.B2, agreement has been paid either to Itty Abraham or Paul as the case may be. It is while so, that Paul executed Ext.B3, assignment deed in favour of respondent on 11.04.1983. 12. It is relevant to note paragraph 3 of the written statement regarding the circumstances which according to the respondent led to Paul executing Ext.B3, assignment deed dated 11.04.1983. It is stated that by that time, difference of opinion erupted between Itty Abraham and Paul in the matter of sharing the consideration referred to in Ext.B2. Itty Abraham refused to join Paul in executing Ext.B3, assignment deed in favour of respondent. When respondent approached Paul, the latter said that whatever disputes exist between Itty Abraham and Paul, it is inter se dispute among them and that the said inter se dispute will not deter Paul from executing the assignment deed and assigning his share in the suit property. Pursuant to that, Paul executed Ext.B3, assignment deed. The averments in paragraph 3 of the written statement cuts at the root of implied consent pleaded by respondent. For it is revealed from paragraph 3 of the written statement that when Paul executed ## **R.S.A. No.1360 of 2004** ## -: 11 :- Ext.B3, there was no implied consent or authorization from Itty Abraham in favour of Paul. On the other hand it is on the face of and acknowledging refusal of Itty Abraham to join the sale deed for whatever reason it be, tenable or not, that Paul executed Ext.B3, assignment deed. 13. The trial and first appellate courts simply relied on Ext.B2, agreement for sale, payment of sale consideration referred to therein which was shared by Itty Abraham and Paul and Exts.B1 and B9 to B12 to hold that there was implied consent from Itty Abraham. Exhibits B1 and B9 to B12 are executed prior to the circumstances stated and paragraph 3 of the written statement and referred to above and thence those documents cannot show implied consent for the execution of Ex.B3, assignment deed. I therefore hold that the plea of implied consent raised by the respondent cannot stand and has to be found against. ## **Point No.2.** 14. Faced with the above situation, learned Senior Advocate for the respondent has pleaded that courts below ought to have found the plea of adverse possession in favour of respondent. It is pointed out by learned Senior Advocate that ## **R.S.A. No.1360 of 2004** ## -: 12 :- even in the absence of a cross objection it is open to the respondent to raise the plea of adverse possession invoking Rule 22 of Order XLI of the Code of Civil Procedure. Learned Senior Advocate contends that the plea of implied consent and adverse possession are not inconsistent but are only alternative. Hence notwithstanding the plea of implied consent, it was open to the respondent to plead adverse possession. Learned Senior Advocate has contended that Ext.B3, assigned deed was executed on 11.04.1983 whereby respondent got possession of the entire suit property. My attention is also drawn to Exts.B4, B6 and B7 to show that respondent is in absolute possession and enjoyment of the suit property since Ext.B3, dated 11.04.1983. 15. Exhibit B4 is a receipt for payment of revenue for the suit property admittedly obtained in the name of respondent. Exhibit B7 is the certificate of possession issued by the Village Officer concerned. Exhibit B6 is the copy of a complaint allegedly preferred by the respondent to the local Sub Inspector when appellant and his father allegedly attempted to take usufructs from the suit property. According to the respondent, on Ext.B6, complaint being preferred the police warned appellant and his father from taking usufructs from the property. That was during ## **R.S.A. No.1360 of 2004** ## -: 13 :- July, 1983. There is no case or evidence that thereafter appellant and his father took usufructs from the suit property. It is contended that possession of respondent in the suit property became adverse to the appellant and his predecessor in interest from the time of Ext.B6, complaint (dated 26.07.1983) and the suit having preferred after 12 years is barred by law of limitation. Reliance is placed on the decision Court **in Kalika** ## **Prasad v. Chhatrapl Singh** (AIR 1971 SC 1699). 16. Learned Senior Advocate for the appellant contended that the plea of implied consent destroys the plea of adverse possession. For, even going by the plea of respondent it was with the implied consent of Itty Abraham that respondent came into possession of the entire property in which case possession having originated lawfully, it was necessary for the respondent to plead from when onwards it has become adverse to Itty Abraham or succeeding him, the appellant by virtue of Ext.A2, settlement deed. It is contended that the written statement does not say the date from which possession of respondent became adverse to the appellant or his predecessor in interest. It is also contended that written statement lacks sufficient averments to raise a plea of adverse possession and perfection of title by law of limitation. ## **R.S.A. No.1360 of 2004** -: 14 :- ## 17. In **Kalika Prasad v. Chhatrapl Singh** **(supra)** respondent was put in possession of the property initially on the strength of a Power of Attorney which was later cancelled. He continued to be in possession of the property. He asserted his own title against the real owner. He continued to be in such possession for a period of 12 years. There was no action on the part of the real owner to evict the respondent. In that situation the Supreme Court observed in paragraph 4 of the decision that possession of respondent was adverse to the real owner and by being in such possession for more than 12 years, he has perfected title by adverse possession by the law of limitation. 18. It is later held that there is no equity in favour of a person claiming title by adverse possession. In State of **Haryana v. Mukesh Kumar** ([2011] 10 SCC 404) the Supreme Court has even recommended to the Union of India to abolish or in the alternative make suitable amendment to the law of adverse possession. 19. Position of law is settled that a plea of adverse possession is a blend of fact and law. The person setting up adverse possession must be able to show that he has been ## **R.S.A. No.1360 of 2004** ## -: 15 :- holding the property, nec vi, nec clam, nec precario. In this case it is the avowed case of respondent that it is with the implied consent of Itty Abraham that she got possession of the suit property. I am inclined to think that the said plea is not inconsistent with the plea of adverse possession. A plea of title or adverse possession can be set up as such pleas can only be taken as pleas in the alternative. 20. Next question is whether on the facts pleaded the said plea could be accepted? Exhibit B6 is pressed into service. That is a copy of complaint stated to be preferred by the respondent to the local police. Courts below did not act upon Ext.B6. 21. In Ext.B3, the assignor (Paul) and respondent has recognized the half right of Itty Abraham in the suit property. In ## **Kunju Mohammed v. Muhammed Kochunaina** (1967 KLT 1113) it is held that the purchaser becomes a co-owner with the remaining co-owners (when the share of a co-owner is purchased) and the presumption of law is that possession, whether of the purchaser or of any of the other co-owners is on behalf of other co-owners as well unless the contrary is shown by proof of ouster. The true test in the case of a purchaser from a co-owner getting into sole possession is whether his animus is to ## **R.S.A. No.1360 of 2004** ## -: 16 :- hold the property as a full owner or merely as a co-owner and that will depend on whether his purchase whatever it was in truth, purports to be of the entire property or only of the share of the alienating co-owner. If it purports to be of the entire property and not merely of a share the alienating co-owner professing to be the sole owner, the animus of the purchaser would be to hold the property as sole owner and not as a co-owner. 22. In **Sankaranarayan v. Ayyappan** (AIR 1983 Kerala 66) it is held that where one of the co-sharers alienated the entire property and in the sale deed, title of the other cosharers to a share in the property was recognized and the transferee was required to satisfy the claim of other co-sharers by giving him his share or value thereof, possession of property by the transferee cannot be said to be hostile to the title of the non-alienating co-sharers. 23. True in this case, Ext.B3, assignment deed does not say that claim of Itty Abraham is to be satisfied by the respondent. But Ext.B3 recognizes the half right of Itty Abraham in the suit property. In other words, it is in recognition of that half right of Itty Abraham that Paul has assigned his half share in the property to the respondent. If that be so, respondent cannot, on ## **R.S.A. No.1360 of 2004** ## -: 17 :- the strength of Ext.B3, assignment deed claim that since then she is in possession of the property with hostile animus to the title of Itty Abraham or his successor in interest, the appellant by A2, settlement deed. 24. Assuming that appellant or his predecessor in interest was kept away from taking usufructs from the property, that by itself cannot amount to adverse possession. For, as aforesaid title of Itty Abraham has been recognized in Ext.B3 and it continued to be so. It is relevant to note that in the written statement filed by the respondent also, right of Itty Abraham has been recognized by saying that obligation remained with Itty Abraham to execute and register assignment deed (certainly in respect of his half share in the property) in favour of the respondent. 25. What could be said by Ext.B3, assignment deed is only that respondent has acquired half right of Paul in the suit property and the respondent holds the property as co-owner either along with Itty Abraham or as trustee on his behalf. It is also the settled position of law that so far as co-owners are concerned, mere non-participation in profits from the property is not sufficient to show ouster as, among co-owners, there must ## **R.S.A. No.1360 of 2004** ## -: 18 :- be plea and evidence of ouster. No such plea or evidence is available in the case. In that view plea of adverse possession raised by the respondent cannot stand. 26. Learned Senior Advocate for the respondent at this stage contended, alternatively, that respondent has made valuable improvements in the suit property and hence respondent may be allowed to plead equity. I am inclined to leave that question for decision in the final decree proceedings in the view I have taken above. 27. Appellant has claimed his share of profits from the suit property. There is no claim for past profits. In view of what I have stated above, appellant is entitled to get his share of profits from the date of suit till possession of property is given, the quantum of which shall be adjudicated in the final decree proceedings. 28. The substantial questions of law framed are answered as above. Second Appeal is allowed as under: i) Judgment and decree of learned Additional District Judge, Thrissur in A.S. No.332 of ## **R.S.A. No.1360 of 2004** ## -: 19 :- 2003 and of learned Principal Sub Judge, Thrissur in O.S. No.479 are set aside. ii) A preliminary decree for partition is passed in O.S. No. 479 of 1999. The suit property shall be divided into two equal halves. Appellant is entitled to get his half share. iii) Appellant is entitled to his share of profits from the date of suit till delivery of possession of his share of the property. Quantum of profits shall be decided in the final decree proceeding. iv) Costs of the suit and appeals shall come out of the estate. v) Claim for equity made by the respondent is relegated to be decided in the final decree proceeding. ## **R.S.A. No.1360 of 2004** -: 20 :- It is open to either of the parties to apply for passing the final decree. Proceedings in the suit will stand adjourned sine die. All pending Interlocutory Applications will stand dismissed. **THOMAS P. JOSEPH, JUDGE.** vsv