AMEER BIBI Vs. CHINNAMMAL

JUDGEMENT

(1.) THE parties to this litigation are a Muslim mother and her two daughters. The eldest of the two daughters is the plantiff; the mother is the first defendant and the other daughter figures as the second defendant. In 1928, the first defendant for herself and as guardian of her then minor daughters instituted a suit O. S. No. 148 of 1928, on the file of the District Munsif Court, Madurai town, for partition of their shares in certain properties and secured under the decree in the said suit for herself and her daughters the southern portion of a house and 3. 34 acres of nanja land. There have been some alienation of the properties thus obtained. The present suit has been instituted by the elder daughter for partition and separate possession of the remaining properties, the house described as item 1 in the plaint schedule and an extent of 1. 20 acres of land described as item 2 in the plaint schedule. The shares of the parties are 16/39 each for the plaintiff and the second defendant and 7/39 for the mother, the first defendant. The plaintiff claims the mother's share in item 1 under a sale deed Ex. A-2 dated 2-4-1942. The plaintiff therefore prays for partition and separate possession of 16/39 share in Item 2 and 23/39th share in the house, Item 1. In defence it is pleaded that there was an oral partition between the parties in or about 1931, wherein the house, item 1, was wholly allotted to the share of the mother, the lands being taken by the plaintiff and the second defendant for their share. It is stated that the plaintiff had parted with her share of the land, and that she had absolutely no right or interest in the suit properties which belonged to the defendants in titles as aforestated. Exclusive and adverse possession for over 30 years of the house by the first defendant and the suit land by the second defendant is set up. The sale of a portion of the house by the first defendant in favour of the plaintiff, it is stated, is a sham transaction not entitled to pass title. The trial Court upheld the defendant's case of partition in 1931 and their exclusive possession of the suit properties for over the statutory period and non-suited the plaintiff.

(2.) ON appeal by the plaintiff the learned District Judge has rejected the plea of an oral partition in 1931, put forward by the defendants. On this finding as it followed that the parties were co-owners, the learned District Judge examined the question whether there was ouster of the plaintiff with reference to the suit properties. With reference to the suit property, item 1 of the plaint schedule, it was noticed that apart from the facts that the house stood registered in the name of the first defendant in the Municipal registry, that she paid the house tax and that she had continued in occupation of the property, there was nothing to establish ouster or adverse possession of the co-owner. It was, therefore, held that the plaintiff would be entitled to partition and separate possession of her 23/39th share in the house. The sale by the mother under Ex. A-2 was held as conveying to the plaintiff only the mother's share in the house. Even the trial Court was inclined to accept the reality of the sale deed, but found against the plaintiff holding that the first defendant had exclusive possession of the house for over the statutory period, the house besides having fallen to the share of the first defendant in the oral partition. Coming to the second item, while of the view that the mere fact that the kist for the second item had throughout been paid by the second defendant would not deprive the plaintiff of her rights therein, the learned District Judge thinks that the execution of a duly registered simple mortgage in 1947 by the second defendant in favour of the Co-operative Society of Arumbanur brought about ouster. The learned District Judge is perfectly conscious that there has been no transfer of possession as in Palania Pillai v. Ibrahim Rowther, ILR 1943 Mad 15 = (AIR 1942 mad 622) (FB ). The learned District Judge is aware that one of the requirements for ouster to be effective is notice of the hostile intent in the cotenant in occupation brought home to the cotenant not in occupation. But then applying the definition of 'notice' in Explanation I to S. 3 of the Transfer of Property Act, and holding that registration of the deed of mortgage was notice of the hostile intent, the plaintiff's rights in item 2 are held barred by adverse possession. The plaintiff in the second appeal challenges this view of the learned District Judge. A memorandum of corss-objections has been preferred by the first defendant in respect of item 1.

(3.) THE question whether on facts found there is ouster or not is a question of law on which a second appeal could lie. As regards the second item, the law as aforestated the only ground on which the plaintiff has been non-suited is the mortgage transaction evidenced by Ex. B-17 in the case dated 13-3-1947. This mortgage is certainly over 12 years before the suit, the plaint having been presented on 3-8-1960. No other hostile act can be relied upon. The patta for the land has continued in the name of the mother. No doubt the second defendant alone has been paying kist for the land and enjoying the profits therefrom. Properly the learned District Judge has not rested his decision on the payment of kist and the enjoyment of the income by the second defendant as amounting to ouster of the plaintiff. The parties are tenants-in-common. It has to be taken as established beyond challenge in second appeal, that the second defendant has been in exclusive occupation of the land and enjoying the profits therefrom. The question is whether this coupled with the execution of the simple mortgage in 1947 whereby the second defendant raised loans for herself on the security of the second item, amounts to adverse possession and hostile enjoyment. The execution of the simple mortgage is a solitary act of assertion of exclusive title. There is no evidence that the execution of the mortgage and the title asserted therein was otherwise brought home to the knowledge of the plaintiff. The learned District judge relies only on the doctrine of constructive notice in Explanation I to S. 3 of the Transfer of Property Act. it is not, as it cannot be seriously contended before me that one must import this equitable doctrine of constructive notice into the provisions of the Limitation Act. The Indian Registration Act itself does not make registration notice for all purposes, when specifying the effects of registration and non-registration. In Tilakdharilal v. Khedanlal, ILR 48 Cal 1 at p. 20 = (AIR 1921 "that notice cannot in all cases be imputed from the mere fact that a document is to be founded upon the Indian Register of Deeds. " Even under Explanation I to S. 3 of the Transfer of Property Act, registration is made notice only to transferees subsequent to the registration. Registration of a subsequent transaction is not notice of the transaction to prior transferees. How in the circumstances the registration of a deed of simple mortgage by the second defendant would amount to notice of the mortgage to the plaintiff who is not a subsequent transferee, I am unable to comprehend. To make mere registration of any transaction by a tenant-in-common itself notice to the other tenants-in-common of the transaction is to impose on tenants-in-common a duty to be on the watch and make frequent search of registration records, let their rights get barred by overt acts and deeds of one of themselves. The article of limitation applicable among co-tenants is the residuary Art. 144 of the limitation Act of 1908. The starting point of limitation is when possession becomes adverse. Possession is generally adverse, it is the indicia of title. But where the parties are co-owners, there is unity of possession, possession of a co-owner is possession of all the co-owners and for possession to become adverse, there must be something more than mere exclusive occupation by one of the co-owners. This exclusive occupation by one of the co-owners, with added features which would amount to adverse possession that would bar a co-owner must be such that one can infer from it an intention by the co-owner in occupation to keep out the other co-owners in assertion of exclusive and hostile title in himself to the property.