//
you're reading...
legal issues

Indian Evidence Act, 1872. Sections 34, 61 and 114. Books of account–Entries–Proof of–Nobody supporting correctness of entries—-Account books liable to be reject- ed. Title–Proof- Presumption on basis of revenue entry–When arises. Limitation Act, 1963. Article 65–Adverse possession–Proof-Actual physical possession by claimant not necessary–Fact that property was in possession of tenants would be of no consequence. Indian Contract Act, 1872. Sections 182 and 188–Joint possession-Claim by agent–Agent actually collecting rent from tenants-Cannot claim joint possession of property. = Respondent No. 1 in the appeals instituted a suit for partition against his younger brothers and sisters, and the heirs of his deceased brothers. The plaintiff was the eldest among the brothers and sisters. The 1st and 2nd Defendants were his brothers, the 3rd Defendant his sister, the 4th and 5th Defendants, the widow and son respectively of the third brother. Defendant 6 was the widow of the fourth brother, and Defendants 7 to 12 were his children, while Defendant No. 14 was the wife of Defendant No. 1, and Defendants 13, 15, 16 and 17 were their children. The subject matter of the appeals related only to one item of property known as “Naroda Chawl” measuring 7 acres and 2 gunthas of land, where 115 rooms and huts stood con- structed, out of which 114 rooms had been let out to ten- ants, and one room was retained for the caretaker. According to Defendants No. 6 to 12 this property exclu- sively belonged to defendant No. 6 and was not liable to partition. The other defendants however supported the plain- tiff’s case that it belonged to the 233 joint family and was liable to partition. Defendants 6 to 12 pleaded that the plaintiff’s father- Bapalal orally gifted this property to his daughter-in-law Defendant No. 6 in March 1946 and made a statement before the Revenue authorities on . the basis of which her name was mutated and she was put in possession thereof, that although she came in peaceful possession, the management which in- cluded realisation of rent was in the hands of Defendant No. 1, that as some dispute arose in 1952 she assumed direct charge of the chawl and had remained in possession thereaf- ter, and that she had acquired good title therein by adverse possession before the suit was filed in 1960. The City Civil Judge who tried the suit, held that there was a joint Hindu family and a business was carried on for the benefit of the family and the income therefrom was thrown into the common pool and all the properties including the disputed chawl were treated as belonging to the family. As the case of Defendant No. 6 about the gift, the mutation of her name, and her exclusive possession from 1946 till the date of the suit was found correct, it was held that she had acquired title by adverse possession, and the suit was dismissed with respect to the disputed chawl. The plaintiff appealed to the High Court. Some of the defendants also filed appeals in respect of the other items of property. All these appeals were heard and disposed of by a common judgment. The High Court reversed the finding of adverse posses- sion in regard to the disputed chawl and granted a decree for partition. It held that Defendant No. 6 remained in exclusive possession of the property only since 1952, the period was thus short of the time required for prescription of title. It further held that since the rents of the chawl from 1952 were collected by her husband and after his death by her son (Defendant No. 7), she was liable to render accounts till the death of her husband, and she along with Defendant No. 7 would be jointly liable for the period thereafter. Separate Appeals were preferred by Defendant Nos. 6 and 7 to this Court. Allowing the Appeals, setting aside the decision of the High Court and restoring that of the Trial Court. 234 HELD: 1. The principle that revenue entry furnishes presumptive evidence of title is inapplicable in the instant case. It cannot be denied that title to Naroda Chawl could not have passed to Defendant No. 6 by virtue of the entry Ext. 247. The value of the chawl even in 1946 was large and no registered instrument of transfer was executed. Besides Ext. 247 describes the plaintiff’s father (Bapalal) and Defendant No. 6 (Chandrakanta) as Kabjedar, that is occu- pant. In such circumstances, the presumption which can be raised in favour of Defendant No. 6 from this entry is with respect of her possession and possession only. [238F-G] Gangabai and others v. Fakirgowda Somaypagowda Desai and others, AIR 1930 Privy Council 93; and Desai Navinkant Kesarlal v. Prabhat Kabhai, 9 Gujarat Law Reporter 694, referred to. 2. The account books have to be rejected as not reli- able. It is apparent from the evidence that nobody takes the responsibility of supporting the correctness of the entries therein. Many of the documents produced by Defendant No. 1 were accepted, but the account books which were S. Nos. 123-75 to 123-97 of Ext. 123 were in express terms not admitted. The plaintiff filed his objection–Ext. 172. Defendant No. 6 also filed her objection–Ext. 275. The books were admitted in evidence and marked as exhibits on the statement of the plaintiff which he made in cross-exami- nation. The plaintiff by saying that he had written as per the instructions of Defendant No. 1 made it clear that he Could not vouchsafe for its reliability. Defendant No. 1 could not summon courage to support them either personally or through any witness. No reason has been suggested as to why he did not produce other important documents in his possession which could have supported the account books and the joint case of the parties resisting the appellant’s claim. [243B-E] 3. Defendant No. 1 cannot be treated to be in joint possession as he was actually collecting the rents from the tenants. it is well settled that the possession of the agent is the possession of the principal and in view of the fidu- ciary relationship, Defendant No. 1 cannot be permitted to claim his own possession. [247D-E] David Lyeii v. John Lawson Kennedy, [1889] XIV H.L.(E) 437; Williams v. Pott, L.R. XII Equity Cases 149 and Secre- tary of State for India v. Krishnamoni Gupta, 29 Indian Appeals 104, referred to. 4(a). It is the intention to claim exclusive title which makes 235 possession adverse and this animus possidendi must be evi- denced and effectuated by the manner of occupancy which again depends upon the nature of the property. The manner of possession depends upon the kind of possession which the particular property is susceptible. That possession to the extent to which it is capable of demonstration must be hostile and exclusive and will cover only to the extent of the owner’s possession. [246E-F] (b). The title to the chawl as owner, subject to the tenancy was an interest in immovable property so as to be covered by Article 144 of the Indian Limitation Act, 1908, which specifically mentioned, “.. . or any interest therein”. [246E] In the instant case, the parties have been fighting for the rent from the chawl so long as it continued in posses- sion of the tenants. Before the gift of 1946 the Defendant No. 1 was collecting the rent and he continued to do so even thereafter till 1952. The appellant has, however, estab- lished her case that the Defendant No. 1 acted as her agent after 1946 and when he repudiated this agency in 1952 he was effectively removed from the management of the chawl. Since 1946 the tenants attorned to the Defendant No. 6 and paid rent to her under printed receipts announcing her ownership, but of course through her agent the Defendant No. 1. The fact that the tenants have been in actual physical posses- sion of the chawl is, in the circumstances, of no assistance to the respondents. What is material is that they paid the rent to the Defendant No. 6. Defendant No. 6 was in adverse possession from the period 1946 to 1952 through her agent Defendant No. 1 and thereafter through her husband and son Defendant No. 7 till 1960 when the suit was filed, the total period being more than 12 years. [246G-H; 248G] Uppalapati Veera Venkata Satyanarayanaraju and another v. Josyula Hanumayamma and another, [1963] 3 SCR 910 and Hari Prasad Agarwalla and another v. Abdul Haw and others, A.I.R. 1951 Patna 160, referred to. =1989 AIR 1269, 1989( 2 )SCR 232, 1989( 2 )SCC 630, 1989( 1 )SCALE802 , 1989( 4 )JT 115

PETITIONER:
Defendant Adolf Eichmann (inside glas booth) i...

Image via Wikipedia


SMT. CHANDRAKANTABEN ETC.

 Vs.

RESPONDENT:
VADILAL BAPALAL MODI & OTHERS.

DATE OF JUDGMENT30/03/1989

BENCH:
SHARMA, L.M. (J)
BENCH:
SHARMA, L.M. (J)
KANIA, M.H.

CITATION:
 1989 AIR 1269 1989 SCR (2) 232
 1989 SCC (2) 630 JT 1989 (4) 115
 1989 SCALE (1)802

ACT:
Indian Evidence Act, 1872. Sections 34, 61 and 114.
 Books of account--Entries--Proof of--Nobody supporting
correctness of entries----Account books liable to be reject-
ed.
 Title--Proof- Presumption on basis of revenue
entry--When arises.
 Limitation Act, 1963. Article 65--Adverse
possession--Proof-Actual physical possession by claimant not
necessary--Fact that property was in possession of tenants
would be of no consequence.
 Indian Contract Act, 1872. Sections 182 and 188--Joint
possession-Claim by agent--Agent actually collecting rent
from tenants-Cannot claim joint possession of property.

HEADNOTE:
 Respondent No. 1 in the appeals instituted a suit for
partition against his younger brothers and sisters, and the
heirs of his deceased brothers. The plaintiff was the eldest
among the brothers and sisters. The 1st and 2nd Defendants
were his brothers, the 3rd Defendant his sister, the 4th and
5th Defendants, the widow and son respectively of the third
brother. Defendant 6 was the widow of the fourth brother,
and Defendants 7 to 12 were his children, while Defendant
No. 14 was the wife of Defendant No. 1, and Defendants 13,
15, 16 and 17 were their children.
 The subject matter of the appeals related only to one
item of property known as "Naroda Chawl" measuring 7 acres
and 2 gunthas of land, where 115 rooms and huts stood con-
structed, out of which 114 rooms had been let out to ten-
ants, and one room was retained for the caretaker.
 According to Defendants No. 6 to 12 this property exclu-
sively belonged to defendant No. 6 and was not liable to
partition. The other defendants however supported the plain-
tiff's case that it belonged to the
233
joint family and was liable to partition.
 Defendants 6 to 12 pleaded that the plaintiff's father-
Bapalal orally gifted this property to his daughter-in-law
Defendant No. 6 in March 1946 and made a statement before
the Revenue authorities on . the basis of which her name was
mutated and she was put in possession thereof, that although
she came in peaceful possession, the management which in-
cluded realisation of rent was in the hands of Defendant No.
1, that as some dispute arose in 1952 she assumed direct
charge of the chawl and had remained in possession thereaf-
ter, and that she had acquired good title therein by adverse
possession before the suit was filed in 1960.
 The City Civil Judge who tried the suit, held that there
was a joint Hindu family and a business was carried on for
the benefit of the family and the income therefrom was
thrown into the common pool and all the properties including
the disputed chawl were treated as belonging to the family.
As the case of Defendant No. 6 about the gift, the mutation
of her name, and her exclusive possession from 1946 till the
date of the suit was found correct, it was held that she had
acquired title by adverse possession, and the suit was
dismissed with respect to the disputed chawl.
 The plaintiff appealed to the High Court. Some of the
defendants also filed appeals in respect of the other items
of property. All these appeals were heard and disposed of by
a common judgment.
 The High Court reversed the finding of adverse posses-
sion in regard to the disputed chawl and granted a decree
for partition. It held that Defendant No. 6 remained in
exclusive possession of the property only since 1952, the
period was thus short of the time required for prescription
of title. It further held that since the rents of the chawl
from 1952 were collected by her husband and after his death
by her son (Defendant No. 7), she was liable to render
accounts till the death of her husband, and she along with
Defendant No. 7 would be jointly liable for the period
thereafter.
 Separate Appeals were preferred by Defendant Nos. 6 and
7 to this Court.
 Allowing the Appeals, setting aside the decision of the
High Court and restoring that of the Trial Court.
234
 HELD: 1. The principle that revenue entry furnishes
presumptive evidence of title is inapplicable in the instant
case. It cannot be denied that title to Naroda Chawl could
not have passed to Defendant No. 6 by virtue of the entry
Ext. 247. The value of the chawl even in 1946 was large and
no registered instrument of transfer was executed. Besides
Ext. 247 describes the plaintiff's father (Bapalal) and
Defendant No. 6 (Chandrakanta) as Kabjedar, that is occu-
pant. In such circumstances, the presumption which can be
raised in favour of Defendant No. 6 from this entry is with
respect of her possession and possession only. [238F-G]
 Gangabai and others v. Fakirgowda Somaypagowda Desai and
others, AIR 1930 Privy Council 93; and Desai Navinkant
Kesarlal v. Prabhat Kabhai, 9 Gujarat Law Reporter 694,
referred to.
 2. The account books have to be rejected as not reli-
able. It is apparent from the evidence that nobody takes the
responsibility of supporting the correctness of the entries
therein. Many of the documents produced by Defendant No. 1
were accepted, but the account books which were S. Nos.
123-75 to 123-97 of Ext. 123 were in express terms not
admitted. The plaintiff filed his objection--Ext. 172.
Defendant No. 6 also filed her objection--Ext. 275. The
books were admitted in evidence and marked as exhibits on
the statement of the plaintiff which he made in cross-exami-
nation. The plaintiff by saying that he had written as per
the instructions of Defendant No. 1 made it clear that he
Could not vouchsafe for its reliability. Defendant No. 1
could not summon courage to support them either personally
or through any witness. No reason has been suggested as to
why he did not produce other important documents in his
possession which could have supported the account books and
the joint case of the parties resisting the appellant's
claim. [243B-E]
 3. Defendant No. 1 cannot be treated to be in joint
possession as he was actually collecting the rents from the
tenants. it is well settled that the possession of the agent
is the possession of the principal and in view of the fidu-
ciary relationship, Defendant No. 1 cannot be permitted to
claim his own possession. [247D-E]
 David Lyeii v. John Lawson Kennedy, [1889] XIV H.L.(E)
437; Williams v. Pott, L.R. XII Equity Cases 149 and Secre-
tary of State for India v. Krishnamoni Gupta, 29 Indian
Appeals 104, referred to.
4(a). It is the intention to claim exclusive title which
makes
235
possession adverse and this animus possidendi must be evi-
denced and effectuated by the manner of occupancy which
again depends upon the nature of the property. The manner of
possession depends upon the kind of possession which the
particular property is susceptible. That possession to the
extent to which it is capable of demonstration must be
hostile and exclusive and will cover only to the extent of
the owner's possession. [246E-F]
 (b). The title to the chawl as owner, subject to the
tenancy was an interest in immovable property so as to be
covered by Article 144 of the Indian Limitation Act, 1908,
which specifically mentioned, ".. . or any interest
therein". [246E]
 In the instant case, the parties have been fighting for
the rent from the chawl so long as it continued in posses-
sion of the tenants. Before the gift of 1946 the Defendant
No. 1 was collecting the rent and he continued to do so even
thereafter till 1952. The appellant has, however, estab-
lished her case that the Defendant No. 1 acted as her agent
after 1946 and when he repudiated this agency in 1952 he was
effectively removed from the management of the chawl. Since
1946 the tenants attorned to the Defendant No. 6 and paid
rent to her under printed receipts announcing her ownership,
but of course through her agent the Defendant No. 1. The
fact that the tenants have been in actual physical posses-
sion of the chawl is, in the circumstances, of no assistance
to the respondents. What is material is that they paid the
rent to the Defendant No. 6. Defendant No. 6 was in adverse
possession from the period 1946 to 1952 through her agent
Defendant No. 1 and thereafter through her husband and son
Defendant No. 7 till 1960 when the suit was filed, the total
period being more than 12 years. [246G-H; 248G]
 Uppalapati Veera Venkata Satyanarayanaraju and another
v. Josyula Hanumayamma and another, [1963] 3 SCR 910 and
Hari Prasad Agarwalla and another v. Abdul Haw and others,
A.I.R. 1951 Patna 160, referred to.JUDGMENT:
 CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 410 and
520(N) of 1973.
 From the Judgment and Decree dated 21/22/23.11.1972 of
the Gujarat High Court in First Appeal Nos. 454 and 455 of
1970.
 B.K. Mehta, D.N. Misra, J.B. Dadachanji & Co. and N.J.
Modi, for the Appellants.
236
 S.K. Dholakia, P.H. Parekh, J.H. Parekh, Ms. Sunita
Sharma, Krishan Kumar, Vimal Dave and H.J. Javeri, for the
Respondents.
The Judgment of the Court was delivered by
 SHARMA, J. These appeals are directed against the deci-
sion of the Gujarat High Court in an appeal arising out of a
suit for partition instituted by the respondent No. 1,
Vadilal Bapalal Modi (since deceased).
 2. The father of the plaintiff Vadilal was Bapalal who
had 5 sons--the plaintiff, Ramanlal, Gulabchand, Kantilal
and Jayantilal; and a daughter--Champaben. Gulabchand was
impleaded as the first defendant in the suit and on his
death his heirs and legal representatives have been substi-
tuted. Kantilal and Champaben are defendants No. 2 and 3
respectively. Ramanlal predeceased Bapalal and his wife and
son are defendants No. 4 and 5. Jayantilal also died earlier
and his wife Smt. Chandrakantaben, defendant No. 6 is the
appellant in Civil Appeal No. 418 of 1973. Their children
are defendants No. 7 to 12. CiviI Appeal No. 520 of 1973 has
been preferred by the 7th defendant, Narendra.
 3. The suit by VadilaI was instituted in 1960, claiming
share in the considerably large properties detailed in the
Schedule to the plaint, but the present appeals are not
related to any other item excepting the property described
as a chawl admeasuring 7 acres and 2 gunthas of land with
115 rooms and huts, situated in the Naroda locality in
Ahmedabad under Lot No. 8 of the plaint which has been
referred to by the counsel for the parties before us as the
chawl or the Naroda chawl. According to the case of the
defendants No. 6 to 12, this property exclusively belongs to
defendant No. 6 and is not liable to partition. The other
defendants contested the claim of the plaintiff with respect
to some other items, but so far the disputed chawl is con-
cerned, they supported the plaintiffs' case that it belonged
to the joint family and is liable to partition.
 4. The land of Lot No. 8 was acquired by Bapalal in 1932
for a sum of Rs.9,450 and the rooms were constructed thereon
in about 1934. It has been held by the High Court, and the
finding has not been challenged before us, that Bapalal
acquired the property and built the chawl with the aid of
ancestral joint funds, and the property, therefore, belonged
to the family. According to the case of the defendants
237
No. 6 to 12, Bapalal orally gifted the property to his
daughter-in-law Chandrakanta the 6th defendant, in March,
1946 and made a statement before the Revenue authorities on
the basis of which her name was mutated, and she was put in
possession thereof. Admittedly 114 rooms in the Naroda chawl
had been let out to tenants, and one room was retained for
the caretaker. According to Chandrakanta's case, although
she came in peaceful possession, the management which in-
cluded realisation of rent was in the hands of Gulabchand
(defendant No. 1). It appears that in 1952 some dispute
arose and Chandrakanta assumed direct charge of the Naroda
chawl and has remained in possession thereafter. Thus she
has been in exclusive possession of the disputed chawl since
1946, and acquired good title therein by adverse possession
before the suit was filed in 1960.
 5. The learned Judge, City Civil Court, Ahmedabad, who
tried the suit, held that BapalaI and his sons constituted a
joint Hindu family and the business carried on by Bapalal
was for the benefit of the family and the income from the
business was thrown in the common pool and all the proper-
ties including the disputed chawl were treated as belonging
to the family. Proceeding further it has been found that the
case of the defendant No. 6 about the gift, the mutation of
her name, and her exclusive possession from 1946 till the
date of the suit was correct. She was accordingly held to
have acquired a title by adverse possession. The suit,
therefore, was dismissed with respect to the disputed chawl.
For the purpose of the present appeal it is not essential to
mention the findings of the trial court relating to the
other items of the suit property. The plaintiff appealed
before the Gujarat High Court. Some of the defendants also
filed two separate appeals against the judgment of the trial
court dealing with other items of property with which we are
not concerned. The appeals were heard and disposed of to-
gether by a common judgment in November 1972. The High Court
reversed the finding of adverse possession in regard to the
disputed chawl and granted a decree for partition. It was
held that the defendant No. 6 remained in exclusive posses-
sion of the property only since 1952 and the period was thus
short of the time required for prescription of title. Deal-
ing with the relief for rendition of accounts, the Court
held that since the rents of the chawl from 1952 were col-
lected by Jayantilal, Chandrakanta's husband and after his
death by her son Narendra (defendant No. 7), Chandrakanta
was liable to render accounts till the death of her husband
and she along with defendant No. 7 would be jointly liable
for the period thereafter. The present appeals are directed
against this judgment.
238
 5. According to the case of the defendant no. 6, her
husband, Jayantilal, used to indulge in speculative business
and he was, therefore, not considered a dependable person.
To ensure economic stability of Chandrakanta and her chil-
dren, her father-in-law, Bapalal decided to make a gift of
the Naroda chawl to her. Both Bapalal and Chandrakanta
appeared before the Talati of Naroda on 5.3.1946 and made
statements. The original statement of Bapalal recorded by
the Talati and signed by Bapalal was produced and marked as
Ext. 268 in the trial court and similarly the statement of
Chandrakanta as Ext. 269. Bapalal has stated in Ext. 268
that Chandrakanta had loyally served him and, therefore, he
was making the gift. A prayer was made for substitution of
her name in the revenue records. A similar prayer was made
by the lady in Ext. 269. The extract from the Record of
Rights is Ext. 247 which mentions Bapalal as the occupant of
the Naroda chawl. The entry was made in May 1933. This entry
appears to have been placed within brackets and a second
entry inserted mentioning Chandrakanta 'wife of Jayantilal
Bapalal'. Mr. B.K. Mehta, the learned counsel for the appel-
lant has strongly relied upon the revenue entry as proof of
her title. Reference was made to the decision in Gangabai
and others v. Fakirgowda Somaypagowda Desai and others,
A.I.R. 1930 Privy Council 93; and Desai Navinkant Kesarlal
v. Prabhat Kabhai, 9 Gujarat Law Reporter 694. It was point-
ed out by the learned counsel that in the Privy Council case
also the revenue records, which were under consideration,
were prepared under the Bombay Land Revenue Code, that is
the same Code under which Ext. 247 was prepared and it was
observed in the judgment that the revenue entry furnished
presumptive evidence of title. The Gujarat case also indi-
cated that a presumption as to the rights in the concerned
property arose in favour of the person whose name was en-
tered. We are not very much impressed by this part of argu-
ment of the learned counsel as it cannot be denied that
title to Naroda chawl could not have passed to the defendant
no. 6 by virtue of the entry Ext. 247. The value of the
chawl even in 1946 was large and no registered instrument of
transfer was executed. Besides Ext. 247 describes Bapalal
and thereafter Chandrakanta as Kabjedar, that is, occupant.
In these circumstances the presumption which can be raised
in favour of Chandrakanta from this entry is with respect to
her possession and possession only.
 7. There is a serious dispute between the parties as to
the actual physical possession of the chawl during the
period 1946 to 1952 and we will have to consider the evi-
dence on this aspect in some detail. In 1952 there was
direct confrontation between Chandrakanta and the defendant
no. 1, Gulabchand. On 14.4.1952 a public notice was
239
published in a local daily named 'Sandesh' vide Ext. 254
wherein Gulabchand informed and called upon the tenants in
the chawl to pay the rent to him within 3 days against
receipts to be issued, failing which legal steps would be
taken against them. On the very next day 'Sandesh' carried
another public notice Ext. 255 issued by Chandrakanta as-
serting her title and exclusive possession and repudiating
the claim of Gulabchand. The tenants were warned that Gulab-
chand or any other person on his behalf had no right or
authority to dispute her claim. On the same day, i.e., on
15.4.1952 another public notice was published in 'Sandesh'
at the instance of Gulabchand reiterating his claim and
asserting that his father Bapalal (who was then alive) was
the owner. It appears that no further action was taken by
any of the parties. The evidence on the record shows that
Bapalal had withdrawn himself from wordly affairs and was
staying in Vrindavan near Mathura. The evidence led by
Chandrakanta of her exclusive possession from 1952 through
her husband and son till the date of the suit was accepted
as reliable by the High Court. Thus there is concurrent
finding of both the two courts below accepting her exclusive
possession from 1952 onwards. The learned counsel for the
plaintiff has, therefore, rightly not challenged before us
this finding which we are independently also satisfied is a
correct one.
 8. The actual position of the chawl from 1946 to 1952
becomes crucial, as Chandrakanta is bound to fail if she is
not successful in proving her adverse possession for this
period. As has been stated earlier, the suit was filed in
1960 and her possession since 1952 cannot be treated long
enough for a prescriptive title to accrue. The parties have,
therefore, taken great pains to prove before us their rival
cases as to the possession of the chawl from 1946 to 1952.
 9. The defendant no. 1 was admittedly managing the
properties belonging to the family. Out of 115 rooms in
Naroda chawl only 114 were let out to tenants and one room
was retained in which, according to the case of Chandrakan-
ta, a caretaker known as Gangia Pathan, engaged by Bapalal,
was staying. After collecting the rent from the tenants the
Pathan used to hand over the money to the defendant no. 1.
After the gift, it was decided that the same arrangement
would continue but the defendant no. 1 would be managing the
property on her behalf and after receipt of the rent he
would deliver the same to her. She claims that this arrange-
ment was acted upon. Admittedly the total rent collection
from the chawl was not large and after deducting the ex-
penses including the maintenance and repair costs and the
salary of the Jamadar (caretaker) the money left was not a
considerable sum.
240
According to the evidence of Chandrakanta the Pathan left
the service and his whereabouts are not known and another
Jamadar with the name of Maganji came in his place. He
looked after the chawl till 1950. Thereafter he was substi-
tuted by Nathu Singh. Maganji's present whereabouts are also
not known. In 1952 Gulabchand made a claim to the chawl
repudiating the ownership of Chandrakanta and he was, there-
fore, removed.
 10. The appellant has relied on a large number of rent
receipts filed by her and her learned counsel laid great
stress on five of them which have been marked as Exts. 240
to 243 and 250 issued in December 1947, January 1948, June
1948 April 1949 and July 1947 respectively. It is signifi-
cant to note that the defendant no. 1 was in charge of the
collection of the rent upto 1952 according to the case of
all the parties. The parties contesting the claim of the
appellant contend that he was so doing on behalf of the
entire family and not on behalf of Chandrakanta as claimed
by her. The defendant no. 1, however, did not choose to
enter the witness box nor did he produce any document which
could have supported his case. The counter-foil receipts
were in his possession and neither they were filed by the
defendant no. 1 nor the plaintiff called for the same.
Defendant no. 6 was able to examine two of the
tenants--Vajesingh (D.W. 1) and Nathaji (D.W. 2). They filed
a large number of receipts issued to them evidencing payment
of rent. The list of documents filed by them are printed on
pages 394 to 395 of the paper book and have been marked as
Exts. 237 and 239. 12 receipts in the list Ext. 237 are for
the period 1.6.1946 to 30.5.1949 and 7 of the list Ext. 239
are from 1.1.1947 to 30.9.1949. They support the case of
Chandrakanta inasmuch as on the top of these receipts are
printed the following words:
" CHAWL OF BAI CHANDRAKANTA THE WIFE OF MODI JAYANTILAL
BAPALAL"
Out of them the receipts Exts. 240 to 243 were admittedly
issued when the defendant no. 1 was incharge of collection
of rent and it is not denied that they were issued at his
instance during the crucial period. The other receipt Ext.
250 was issued for the period 1.6.1947 to 1.7.1947 under the
signature of the plaintiff Vadilal and this also similarly
carried the description of the chawl as belonging to Chan-
drakanta. No explanation is forthcoming on behalf of either
the defendant no. 1 or the plaintiff as to how they were
issuing receipts of the above description.
241
 11. From the evidence it appears that although defendant
no. 1 was in-charge of the management of the chawl during
1946 to 1952, the actual collection from the individual
tenants was made by the Jamadar (caretaker) who generally
signed the receipts and handed over the collected amount to
the defendant no. 1. The tenant Nathaji (D.W. 2) has said
that Maganji Jamadar used to prepare the receipts. It has
been argued before us on behalf of the plaintiff that the
receipts were filed after the examination of the plaintiff
was over and so he could not explain the same, specially the
one receipt issued under his signature. It is significant to
note that the cases of the plaintiff, the defendant no. 1
and the other defendants excepting defendants 6 to 12 are
common so far the Naroda chawl was concerned and the turn of
these defendants leading evidence at the trial of the suit
came later. The evidence of Chandrakanta was closed on
29.9.1964 and the witnesses for the defendant no. 1 were
examined on 20.10.1964. Besides, the plaintiff could have
re-examined himself if he had any explanation to offer. The
cross-examination of D.W. 2 on his behalf also indicates
that no suggestion to the witness by way of explanation was
made. In his evidence plaintiff stated that he was also
collecting the rent from the different tenants in chawl at
the instance of defendant no. 1 and he used to hand over the
collections to him. He admitted the fact that there were
counter-foils which ramained with the defendant no. 1. The
High Court while examining this aspect accepted and relied
on Ext. 250 signed by the plaintiff, but failed to appreci-
ate the significance of the description of the Naroda chawl
on the receipt as the property of the defendant no. 6.
Similar is the position of the defendant no. 1 who did not
come to the witness box at all. Chandrakanta examined her-
self as D.W. 3 and supported her case. Although there are
some minor discrepancies in her deposition, the same is
consistent with the documents and the circumstances in the
case and appears to be reliable.
 12. While reversing the finding of the trial court that
Chandrakanta was in exclusive possession of the chawl not
only from 1952 onwards but even earlier since 1946, the High
Court was mainly impressed by three items of the evidence,
namely, i)certain account books claimed to be the books at
the joint family, ii) several IncomeTax returns filed by the
defendant no. 1, and iii) a document of agreement, Ext. 167.
So far the Income-Tax papers are concerned, they are of the
period after 1952 and it has already been stated earlier
that the High Court has agreed with the trial court that
since 1952 the defendant no. 6 was in adverse possession of
the chawl. In view of this finding, with which we fully
agree, the Income-Tax documents do not
242
have any impact, except showing that the author of these
returns was falsely including income therein which did not
accrue to the family. So far the account books and the deed
of agreement are concerned, it will be necessary or appreci-
ating their true nature and impact on this case, to consider
some more facts.
 13. The account books were produced by the defendant no.
1 within a list of documents, Ext. 123. The defendant no. 1,
however, did not lead any evidence with respect to the same
when his turn at the trial came. As mentioned earlier, he
personally avoided the witness box, but examined some wit-
nesses who did not attempt either to prove the books or
speak about their authenticity. The books were admitted in
evidence and marked as exhibits on the statement of the
plaintiff which he made in cross-examination. Some of the
books were shown to him and he admitted that they were in
his hand writing, but immediately added;
"I have written them as per the instructions of defendant
No. 1 and as directed by him. They are maintained from month
to month."
The income from the Naroda chawl which was admittedly very
small as compared to the vastness and the present value of
the property, was included in the account books. According
to the case of the respondent the books are authentic, and
disclosed the true state of affairs. There was considerable
discussion at the bar before us as well as before the High
Court as is apparent from the judgment under appeal, relat-
ing to the law of evidence dealing with account books.
Reliance was placed on Sec. 34 of the Indian Evidence Act
which provides that entries in books of account regularly
kept in the course of business are relevant whenever they
refer to a matter into which the Court has to enquire. It
has been contended on behalf of the respondents that since
the plaintiff stated that the books were being maintained
from month to month the requirement of law was satisfied.
Mr. Mehta, the learned counsel for the appellant argued that
apart from the formal proof of the execution of the docu-
ment, the party relying thereon was under a duty to lead
evidence in support of the correctness of the entries in the
books which is completely lacking here. Besides, it was
pointed out that the relevant books are merely joint khata-
bahis of Samvat 2005 to 2006 equivalent to 1948 to 1949
without the support of primary evidence of the cash books.,
,The other relevant documents which are admittedly in pos-
session of the defendant no. 1 have not been produced,
including the account books of other years during the cru-
cial
243
period, the Income-tax returns and assessment orders for the
period 1946 to 1952 and the counter-foil rent receipts.
 14. It is apparent from the evidence that nobody takes
the responsibility of supporting the correctness of the
entries in the account books. When they were produced in
Court the plaintiff filed his objection as per his purshis,
Ext. 172 (page 368 of the paper book). Many of the documents
produced by the defendant no. 1 were accepted, but the
account books which were serial nos. 123-75 to 123-97 of the
list Ext. 123 were in express terms not admitted. The plain-
tiff said that they might be exhibited, but subject to his
objection. The defendant no. 6 also filed her objection as
per the purshis Ext. 275. The plaintiff did not make any
statement supporting the books in his examination in chief
and only in reply to the question of the cross-examining
lawyer of the defendant no. 1, he stated as mentioned earli-
er. It is significant to note that by saying that he had
written as per the instructions of the defendant no. 1 he
made it clear that he could not vouchsafe for their reli-
ability. In spite of this situation, the defendant no. 1
could not sommon courage to support them either personally
or through any witness. No reason has been suggested at all
on his behalf as to why he did not produce the other impor-
tant documents in his possession which would have supported
the account books and the joint case of the parties resist-
ing the appellants' claim. In view of all these circum-
stances we have no hesitation in rejecting the account books
as not reliable.
 15. So far Ext. 167 is concerned, the High Court has
relied upon it as the Naroda chawl has been treated by the
document as belonging to the joint family. It was executed
on 24.10.1954 by the plaintiff and his three brothers but
not by Jayantilal, the husband of defendant no. 6, although
he is also shown as a party thereto. The brothers appear to
have settled their dispute with respect to different items
of property and the disputed Naroda chawl is shown as the
seventh item in the list of properties. Although the four
brothers personally signed the document, so far Jayantilal's
branch was concerned the signature of Narendra, defendant
no. 7, who was a minor then, was taken. Reliance has been
placed on the attestation of Bapalal, the father of the
executants. Two days earlier, i.e., on 22.10.1954, he had
executed a release deed, Ext. 222 giving up his right in the
family properties for a sum of money named therein. He was
already staying in Vrindavan for sometime past and proposed
to spend the rest of his life there. The release deed,
however, did not contain any list of properties and the
document, therefore, is not of any help to either side. SOl
far the
244
agreement Ext. 167 is concerned, it has not been stated by
anybody that Bapalal went through its contents or that
somebody read the same to him before he attested it. There
is no presumption that an attesting witness of a document
must be assumed to be aware of its contents. What is signif-
icant, however, is that it was executed in 1954 when the
defendant no. 6 was in adverse possession to the exclusion
of the defendant no. 1 and the other members of the family,
and Jayantilal did not join the document and his brothers
chose to get the signature of his minor son. This is con-
sistent with their dishonest attempt to include the income
from the chawl in the Income-Tax returns of the period after
1952, when the defendant no. 6 undoubtedly was in exclusive
possession. As has been stated earlier, in 1952 there was a
direct confrontation between them on the one hand and the
defendant no. 6 on the other, when public notices were
published in 'Sandesh'. If their case about their earlier
possession had been true they would have produced their
Income-Tax returns and the assessment orders of that period,
i.e. 1946 to 1952. The family was possessed of vast proper-
ties and was paying Income-Tax. The entire circumstances
lead to the irresistible conclusion that after the defendant
no. 1 was removed by the defendant no. 6 from the management
of the disputed Naroda chawl he and the other members of the
family started creating evidence in support of their false
claim. We do not in the circumstances place any reliance on
this deed of agreement.
 16. So far the oral evidence in the case is concerned,
the plaintiff, Vadilal examined himself as a witness, but
was not supported by any other member of the family, al-
though his brothers, Gulabchand and Kantilal, defendants 1
and 2 respectively, were alive when the case was heard in
the trial court. Even his nephew, Rajnikant, defendant no.
5, son of deceased Ramanlal did not prefer to come to the
witness box. The husband of the defendant no. 6, Jayantilal
had died in 1956, i.e., about 3-4 years before the institu-
tion of the suit. Chandrakanta examined herself in support
of her case and was cross-examined at considerable length.
Her son, Narendra defendant no. 7, who was minor in 1954
when Ext. 167 was executed, was also examined as a witness.
After the death of his father, Jayantilal in 1956, he start-
ed collecting the rent of the chawl, and as stated earlier
both the courts have concurrently held in favour of the
exclusive possession of the defendant no. 6 from 1952 on-
wards. The plaintiff, however, claimed that the chawl was in
the possession of the family even later than 1952. We have
been taken through his evidence and the evidence of Chandra-
kanta in extenso by the learned counsel for the parties, who
made long comments thereon during their arguments. Both the
judg-
245
ments of the trial court and the High Court have discussed
the evidence at length and we do not consider it necessary
to once more deal with them in detail. We agree with the
reasons given by the trial court for accepting the case and
the evidence of the defendant no. 6 and rejecting the plain-
tiff's oral evidence and the case of the respondents. The
plaintiff contradicted himself so seriously during his
examination that at one stage he had to expressly admit that
several of the statements made in his examination in chief
were 'false' (see paragraph 25). It was demonstrated by the
further cross-examination that he had made many more incor-
rect statements. On the other hand, Chandrakanta's evidence
is far superior. Although she also made some inconsistent
statements, but the discrepancies did not relate to any
matter of vital importance. Her evidence substantially is
reliable and is supported by important circumstances of (i)
the mutation of her name in place of Bapalal on the basis of
a statement of the latter; (ii) the description of the chawl
as belonging to her on the printed rent receipts given to
the tenants out of which some were issued by the defendant
no. 1 and the plaintiff, and (iii) the suppression of vital
materials in possession of the defendant no. 1 which were
withheld from the Court. The conduct of the parties in not
filing the suit before 1960 is also consistent with the
correctness of her case. When the defendant no. 1 was effec-
tively removed from the management of the property by the
defendant no. 6 in 1952, Bapalal was alive. The defendant
no. 1 as also the other members of the family contesting her
claim kept quiet and did not risk starting a litigation
during his life time. Even in 1960 it was the plaintiff and
not the defendant no. 1 who instituted the present suit in
which he included the Naroda chawl in the schedule of
properties to be partitioned. The defendant no. 1 was manag-
ing the affairs of the family, but did not take any steps to
dislodge the defendant no. 6 from the chawl. The impugned
judgment indicates that there were serious differences
between the plaintiff and the defendant no. 1 on other items
of property and the main reason for the plaintiff to file
the suit does not appear to be his claim to the Naroda
chawl. We do not consider it necessary to reiterate the
other reasons given in the trial court judgment in support
of the decision in favour of the appellant, with which we
agree. We, therefore, hold that the defendant no. 6 remained
in exclusive adverse possession of the disputed Naroda chawl
right from 1946 onwards till the suit was filed in 1960.
 17. Mr. Dholakia, the learned counsel for the contesting
respondents contended that since the chawl has remained in
actual possession of the tenants, Bapalal or the family must
be held to be in symbolic
246
possession in 1946 and for that reason the defendant no. 6
also can not be treated to have come in actual possession of
the property, which could have permitted her to prescribe a
title in the chawl. The learned counsel further argued that
since the defendant no. 1 and the plaintiff were actually
collecting rent from the tenants they also must be held to
be in joint possession and, therefore, the defendant-no. 6
can not succeed as she has not been able to prove their
ouster. The other members of the joint family will also be
entitled to rely on this aspect so as to successfully defend
their right. Reliance was placed on the decision of the
Patna High Court in Hari Prasad Agarwalla and another v.
Abdul Haq and others, A.I.R. 1951 Patna 160; in support of
the argument that for adverse possession actual physical
possession is necessary and mere constructive possession is
not sufficient. We are afraid, it is not possible to accept
the argument.
 18. The subject matter of dispute in the present case is
the title to the chawl as the owner-landlord subject to the
tenancy of the tenants in possession. Neither the plaintiffs
nor the defendants are claiming the actual physical posses-
sion of the chawl by eviction of the tenants. Any reference
to the actual physical possession of the tenant is, there-
fore, wholly irrelevant for the purpose of the present
controversy. It has to be remembered that the title to the
chawl as owner, subject to the tenancy was an interest in
immovable property so as to be covered by Article 144 of the
Indian Limitation Act, 1908, which specifically
mentioned," .... or any interest therein". These words
were retained in Article 65 of the new Limitation Act. It is
true that it is the intention to claim exclusive title which
makes possession adverse and this animus possidendi must be
evidenced and effectuated by the manner of occupancy which
again depends upon the nature of the property. The manner of
possession depends upon the kind of possession which the
particular property is susceptible. That possession to the
extent to which it is capable of demonstration must be
hostile and exclusive and will cover only to the extent of
the owner's possession. In the present case the parties have
been fighting for the rent from the chawl so long as it
continues in possession of the tenants. Before the gift of
1946 the defendant no. 1 was collecting the rent and he
continued to do so even thereafter till 1952. The appellant
has, however, established her case that the defendant no. 1
acted as her agent after 1946 and when he repudiated this
agency in 1952 he was effectively removed from the manage-
ment of the chawl. Since 1946 the tenants attorned to the
defendant no. 6 and paid rent to her under printed receipts
announcing her ownership, but of course through her agent
the defendant no. 1. The actual physical possession of the
tenants in
247
the circumstances would enable the appellant to establish
her prescriptive title. The decision in Uppalapati Veera
Venkata Satyanarayanaraju and another v. Josyula Hanumayamma
and another, [1963] 3 SCR 910, indicates that if a tenant
makes an attornment in favour of a person who is not the
true owner and follows and paying the rent to him, such a
person must be held to have effective possession. The land-
lord must be deemed to be in possession through his tenant
is also demonstrated by another illustration. If the tenant
trespasses over the neighbour's land treating it to be
covered by his tenancy and remains in possession for the
requisite period so as to prescribe a title thereto, his
interest therein is limited to the interest of the tenant
and his landlord acquires the title of the owner. The con-
duct of such a tenant has been aptly described as stealing
for the landlord (see I.L.R. 10 Calcutta 820 and (1949) 54
C.W.N. 879). The fact that the tenants have been in actual
physical possession of the chawl is, in the circumstances,
of no assistance- to the respondents. What is material is
that they paid the rent to the defendant no. 6.
 19. There is no merit in the further argument that the
defendant no. 1 must be treated to be in joint possession as
he was actually collecting the rent from the tenants. It is
well settled that the possession of the agent is the posses-
sion of the principal and in view of the fiduciary relation-
ship the defendant no. 1 cannot be permitted to claim his
own possession. This aspect was well emphasised in David
Lyeii v. John Lawson Kennedy, [1889] XIV H.L. (E) 437, where
the agent who was collecting the rent from the tenants on
behalf of the owner and depositing it in a separate ear-
marked account continued to do so even after the death of
the owner. After more than 12 years of the owner's death his
heir's assignee brought the action against the agent for
possession and the agent defendant pleaded adverse posses-
sion and limitation. The plaintiff succeeded in the first
court. But the action was dismissed by the Court of Appeal.
The House of Lords reversed the decision of the Court of
Appeal and remarked: "For whom, and on whose behalf, were
those rents received after Ann Duncan's death? Not by the
respondent for himself, or on his own behalf, anymore than
during her life time". Emphasing the fiduciary character of
the agent his possession was likened to that of trustee, a
solicitor or an agent receiving the rent under a power of
attorney. Another English case of Williams v. Pott, L.R. XII
Equity Cases 149, arising out of the circumstances similar
to the present case was more interesting. The agent in that
case was the real owner of the estate but he collected the
rents for a considerably long period as the agent of his
principal who was his mother. After the agent's death his
heir claimed the estate.
248
The mother (the principal) had also by then died after
purporting by her will to devise the disputed lands to the
defendants upon certain trusts. The claim of the plaintiff
was dismissed on the plea of adverse possession. Lord Romil-
ly, M.R., in his judgment observed that since the possession
of the agent was the possession of the principal, the agent
could not have made an entry as long as he was in the posi-
tion of the agent or his mother, and that he could not get
into possession without first resigning his position as her
agent which he could have done by saying: "The property is
mine; I claim the rents, and I shall apply the rents for my
own purposes". The agent had thus lost his title by reason
of his own possession as agent of the principal. A similar
situation arose in Secretary of State for India v. Krishna-
moni Gupta, 29 Indian Appeals 104, a case between lessor and
lessee. There the proprietors of the land in dispute, Mozum-
dars were in actual physical possession but after getting a
settlement from the Government in ignorance of their title.
The Government contended that the possession of the Mozum-
dars was, in circumstances, the possession of the Government
claiming the proprietory right in the disputed land and that
such possession was in exclusion and adverse to the claim of
the Mozumdars to be proprietors thereof. The plea succeeded.
It was observed by the Judicial Committee.
 "It may at first sight seem singular that
 parties should be barred by lapse of time
 during which they were in physical possession,
 and estopped from disputing the title of the
 Government. But there is no doubt that the
 possession of the tenant is in law the posses-
 sion of the landlord or superior proprietor,
 and it can make no difference whether the
 tenant be one who might claim adversely to his
 landlord or not. Indeed, in such a case it may
 be thought that the adverse character of the
 possession is placed beyond controversy."
 We are, therefore, of the view that the defendant No. 6
was in adverse possession from the period 1946 to 1952
through her agent defendant No. 1 and thereafter through her
husband, Jayantilal and son, defendant No. 7 till 1960 when
the suit was filed, the total period being more than 12
years.
 21. For the reasons mentioned above, the decision of the
High Court must be held to be erroneous. Consequently the
decrees for accounts against the defendants No. 6 and 7 must
also go. Accordingly, the appeals are allowed, the decision
of the High Court, so far
249
the subject matter of the present appeals is concerned, is
set aside and that of the trial court restored. In view of
the close relationship of the parties and the other circum-
stances, the parties are directed to bear their own costs
throughout.
N.V.K. Appeals allowed.
250

About advocatemmmohan

ADVOCATE

Discussion

Comments are closed.

Blog Stats

  • 2,887,385 hits

ADVOCATE MMMOHAN

archieves

Enter your email address to subscribe to this blog and receive notifications of new posts by email.

Join 1,905 other followers
Follow advocatemmmohan on WordPress.com
%d bloggers like this: