FAKIRAPPA BABAPPA YALIGAR Vs. RUDRAPPA RACHAPPA DESHNUR

JUDGEMENT

(1.) In this case I have to decide whether the purchaser of a property from the managing member of a coparcenery and his minor nephew, (the minor purporting to be represented by his mother and by the said managing coparcener), obtained a valid title to the property in the events that have happened.

(2.) It was argued that Section 41 of the Transfer of Property Act was applicable in favour of the purchaser, who had acquired the property from an ostensible owner; that the transfer was for consideration ; that the transferee had taken reasonable care to as certain that the transferor had power to make the transfer and had acted in good faith. This point was not taken in the first instance. It is not raised in the pleadings and issues. It cannot be allowed to be raised at this stage : DeSilva V/s. DeSilva (1903) 5 Bom. L.R. 784 and Mulji Jetha & Co. V/s. Macleod (1903) 5 Bom. L.R. 991.

(3.) Next, it was argued that the appellant had acquired the property by adverse possession. The appellant is a stranger to the family who acquired the property on March 15, 1917, from another stranger to whom the property had been sold on March 15, 1904. It was held by a full bench of the Bombay High Court in Bhavrao V/s. Rakhmin (1898) I.L.R. 23 Bom. 137, F.B. that Art. 127 of the Indian Limitation Act does not apply where a stranger has acquired the property. Such an alienee who has been in possession for more than twelve years is not to be deemed a person who has excluded his coparceners from joint family property : Art. 127 ; a claim for partition against him is not to be considered-as between him and his vendor's coparceners-to be a suit for enforcing a right to a share in joint-family property; nor is it necessary for him to prove when first the exclusion becomes known to the plaintiffs (the coparceners of his vendors) in order that time may begin to run in his favour: time begins to run as soon as his possession becomes adverse. On the authority of this case it has been held in Muttsami v. Ramakrishna (1889) I.L.R. 12 Mad. 292 that where a coparcener sells a specific portion of the joint holding, which portion is in his possession, and possession of that portion is immediately delivered to the purchaser, the possession of such purchaser is adverse to the other coparceners, from the moment of the purchaser's entry. A similar decision was arrived at in Anwar V/s. Kishen Singh, s.c. : (1922) A.I.R. Lah. 205 where the cases are collected.