RACHAPPA TOTAPPA Vs. MADIVALAWA RACHAPPA

JUDGEMENT

(1.) THIS appeal arises out of a suit filed by the plaintiffs for a partition and possession of their two-sixth share in a land and a house which had been kept undivided when they separated from their father and step-brothers in the year 1931-32. Defendant No. 3 is the father of the plaintiffs and defendants Nos. 4 to 6, and defendant No. 7 is the wife of defendant No. 3. Defendant No. 3 was adopted into a different family and possessed considerable ancestral property including the property in suit. He had a brother named Rachappa in his natural family, and prior to Rachappa's marriage, defendant No. 3 made a gift of the property in suit to Rachap'pa's bride Basava by a registered deed of gift dated August 17, 1916. Basava was then a minor and on her behalf her father took possession of the property as her guardian. Basava died in 1922 and the property devolved upon her husband Rachappa as her heir. Rachappa is dead and the property is now in the possession of his widow defendant No. 1 and his son defendant No. 2. When defendant No. 3 passed the deed of gift in favour of Basava in 1916, plaintiff No. 1 had been born. Plaintiff No. 2 was born in 1919, three years after the deed of gift was executed. The plaintiffs claim that as defendant No. 3 and plaintiff No. 1 were members of a joint Hindu family, defendant No. 3 had no power to make a gift of any portion of the ancestral property. The deed of gift passed by him in favour of Basava being invalid, both the plaintiffs claim their share in it by metes and bounds. Their claim was resisted by defendants Nos. 1 and 2 who contended that the property belonged to defendant No. 3, that defendant No. 3 had a right to dispose of it by gift, that the gift was binding on the plaintiffs and that in any event Basava and after her death Rachappa had become owners of the property by their adverse possession for more than twelve years. The trial Court held that the property in suit was the ancestral property in the hands, of defendant No. 3, that he had no right to make a gift of it in favour of deceased Basava, that the gift was not binding on the plaintiffs and that the plaintiffs' claim was in time, The plaintiffs were, therefore, given a decree for partition and possession of their two-sixth share in the property in suit. Defendants Nos. 1 and 2 appealed against that decree and the learned District Judge accepted the findings of the trial Court that the property in suit was ancestral property in the hands of defendant No. 3, that plaintiff No. 1 was born before the deed of gift was executed by him and that, therefore, the gift was invalid. But he found that Basava took possession of the property as its owner under the invalid deed of gift in 1916, that the possession continued with her husband after her death, that the possession was adverse as against its rightful owners and that it had ripened into a title after the expiry of twelve years. Plaintiff No. 1 was born on April 4, 1915, and attained majority in April, 1933. He should have filed the suit within three years after attaining majority, but this suit was filed on August 2, 1938. It was urged that plaintiff No. 2 had attained majority less than three years before the institution of the suit, but the learned District Judge held that he did not get a fresh cause of action, and as adverse possession had commenced before his birth, he could not get any benefit from his minority. The suit was, therefore, held time barred and was dismissed with costs.

(2.) IT is not now disputed that the property in suit was the ancestral property of defendant No. 3 and at the date of the deed of gift it belonged jointly to him and! his son plaintiff No. 1 as members of a joint Hindu family. IT follows, therefore, that defendant No. 3 had no power to make a gift of any portion of the ancestral property, and the deed of gift which he executed in favour of Basava in 1916 was void. But the learned appellate Judge has held that Basava took actual possession of the property under the void deed of gift and remained in possession as its owner. That is a finding of fact which is supported by good evidence and is binding in second appeal. There is no doubt that the possession of Basava was wrongful as the deed of gift under which she obtained possession was invalid in its inception. She continued in possession till her death and that possession devolved upon her husband Rachappa after her death. This continuous possession for more than twelve years conferred upon them a title to the property under Section 28 of the Indian Limitation Act, 1908, But Mr. Moropanth argues that Rachappa was the plaintiffs' uncle and his possession must be deemed to have been on behalf of the plaintiffs on the principle laid down in Morgan v. Morgan (1737) 1 Atk. 489. In that case Lord Hardwicke observed (p. 489) : Where any person, whether a father or a stranger, enters upon the estate of an infant and continues the possession, this Court will consider such person entering as a guardian to the infant.

(3.) MR. Moropanth says that Rachappa's possession became adverse against the minor only, in 1931 when he acted as his guardian for the purpose of effecting a partition between the plaintiffs and their father and step-brothers. But before 1931 the adverse possession which had commenced in 1916 had already ripened into a title and Rachappa was then in possession of the property as its full owner under Section 28 of the Indian Limitation Act. It cannot, therefore, be said that at the time of the partition of 1931-32 he was acting as the guardian of the plaintiffs in respect of the property in suit. He was then concerned with the partition of the property which then belonged to the joint family of the plaintiffs, his father and his step-brothers. But the property in suit had ceased to be such joint family property at that time. I do not, therefore, see how the plaintiffs can be said to have a fresh cause of action when the partition was effected by Rachappa as their guardian.