PETITIONER:
MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS.
Vs.
RESPONDENT:
SAYED AHMED MOHINDEEN AND ORS.
DATE OF JUDGMENT15/12/1989
BENCH:
KASLIWAL, N.M. (J)
BENCH:
KASLIWAL, N.M. (J)
SINGH, K.N. (J)
CITATION:
1990 AIR 507 1989 SCR Supl. (2) 519
1990 SCC (1) 345 JT 1989 (4) 563
1989 SCALE (2)1381
ACT:
Indian Limitation Act, 1963: Adverse possession--Claim
of Among co-heirs there must be evidence of an essertion of
hostile title coupled with possession and enjoyment
HEADNOTE:
Mohd. Zainulabdeen and Yasin By filed a suit for decla-
ration that they were entitled to be in enjoyment and pos-
session of Saint Syeed Moosa Shah Khadiri Dargah in Madras
for 27 days and to restrain the defendants from interfering
with tile plaintiffs' aforesaid right and management in the
Dargah.
In reply the defendant No. 1 alleged that in the manage-
ment of the Dargah, female members had no right nor could
they claim the right of Mujawar. It was also alleged that
Fathima Bee through whom the Plaintiffs were claiming never
enjoyed the right to Hundial collection of the Dargah and
share in the Mujawarship and even if she had any right the
same was lost as she did not claim any right till her death
and therefore the Plaintiffs were also not entitled to any
relief. Defendants 7, 8 and 10 however in their written
statements admitted family members to be sharer in the
income and management of the Dargah and they also admitted
that they were paying such share to their sister Ahamadun-
nissa (10th defendant) in the Hundial collections and that
the City Civil Court in suit No. 7518 of 1971 had also
recognised the right of 7th defendant Anser Bi to management
of the Dargah for 9 days in a year. Thus it was false to
contend that the females were not entitled to claim manage-
ment.
The trial court decreed the suit of the Plaintiffs and
held that they were entitled to manage the Dargah 1or 27
days in a year. Defendants 3 to 6 and 12 to 19 filed appeals
against the judgment of the trial court.The City Civil
Judge, however, affirmed the judgment of the Trial Court
with some modifications in the relief.
Different sets of defendant filed two second appeals
before the High Court and both were disposed of by the High
Court by its judgment and Order dated 17th November, 1981
whereby it reversed the
520
judgments and decrees of the courts below and dismissed the
suit filed by the Plaintiffs.
This Court came to the conclusion that there is no
controversy as regards the period of 27 days falling to the
share of the Plaintiffs and the right of the females to the
management of the Dargah according to Muslim law. As regards
the question of right of Fathima Bee having become barred by
limitation by ouster and that as such the Plaintiffs too had
lost that right, this Court, while setting aside the Judg-
ment and Decree of the High Court and restoring that of the
Trial Court as modified by the First Appellate Court,
HELD: It iS well settled that where one co-heir pleads
adverse possession against another co-heir it is not enough
to show that one out of them was in sole possession and
enjoyment of the profits of the properties. The possession
of one co-heir is considered in law as possession of all the
co-heirs. The co-heir in possession cannot render his pos-
session adverse to the other co-heirs not in possession
merely by any secret hostile animus on his own part in
derogation of the other co-heirs title. [526G-H; 527A]
It is a settled rule of law as between co-heirs that
there must be evidence of open assertion of hostile title
coupled with exclusive possession and enjoyment by one of
them to the knowledge of the other so as to construe ouster.
[527A]
The High Court in the instant case committed a serious
error in reversing the finding of the lower Appellate Court
and in taking a wrong approach in holding ouster on the
basis of the judgment and decree given in Suit No. 116 of
1909 and on the ground that Fathima Bee had not made a
demand or asked for her share of the hundial collections at
any point of time till her death in 1957. [527G]
P. Lakshmi v.L. Lakshmi Reddy, [1957] SCR 195, referred to.
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3 160 of
1983.
From the Judgment and Order dated 17.11.1981 of the
Madras High Court in Second Appeals Nos. 650 and 874 of
1981.
V.M. Tarkunde, Ms. S. Khanna, Jagmohan Khanna and A.S.
Khan for the Appellants.
521
T.S. Krishnamurthy, K.R. Choudhary, S.M. Amiad Nainar
and S. Thananjayan for the Respondents.
The Judgment of the Court was delivered by
KASLIWAL, J. This Civil Appeal by the plaintiffs is
directed against the Judgment of High Court of Judicature at
Madras in Second Appeal Nos. 650 & 894 dated 17th November,
1981.
Mohd. Zainulabdeen and Yasin Bi filed a suit for decla-
ration that they were entitled to be in enjoyment and pos-
session of Saint Syed Moosa Shah Khadiri Dargah in Madras
for a period of 27 days in all in the months of February,
March, June, July, October & November and to restrain the
defendants from interfering with the plaintiffs aforesaid
right and management in the Dargah. The case of the plain-
tiffs as set up in the plaint was that the Dargah in ques-
tion was being managed by the members of the family of one
Sayed Mohideen Sahib. Sayed Mohideen had two sons Sayed
Ismail Sahib and Sayed Gulam Dastagir Sahib. As per Judgment
in C.S. 116 of 1909 the right of management was divided
between the two sons each taking six months for himself.
According to this arrangement the branch of Sayed Ismail
Sahib used to remain in management for the months of Janu-
ary, April, May, August, September and December and the
branch of Gulam Dastagir Sahib for the other six months,
namely, February, March, June, July October and November.
The present suit relates to the controversy between the
decendants of the branch of Gulam Dastagir Sahib. According
to the plaintiffs after the death of Sayed Gulam Dastagir
the right and management of the Dargah according to Muslim
Law devolved on his two sons and one daughter, namely, Sayed
Gaffar Sahib, Sayed Mohideen and Fathima Bee in proportion
of 2:2:1 respectively. The plaintiffs alleged that thus
Fathima Bee had 1/5 share in 6 months i.e. 36 days. Fathima
Bee left surviving one son and two daughters. The plaintiffs
who are one son and one daughter of Fathima Bee as such are
entitled to 3/4 share i.e. 27 days, as another daughter
Zahurunnissa was not interested in claiming her right has
been impleaded as defendant No. 2. After the death of Fathi-
ma Bee, the plaintiffs being her son and daughter associated
themselves in the management of the Dargah with their mater-
nal uncles and the sons of the maternal uncles and were
getting share of the income of the Dargah. According to the
plaintiffs this arrangement was going on for several years
eversince the death of Fathima Bee in 1957. However on
account of some dissensions, the first defendant Sayed
Mohideen (since deceased) and another defendant being the
son of another
522
deceased maternal uncle were preventing the plaintiffs from
exercising their right and enjoying the income of the Dar-
gah. The plaintiffs served a notice on 23.3.1972 calling
upon the defendants to recognize the right of management of
the plaintiffs in the Dargah. The defendants sent a reply on
22.4.1972 stating that the plaintiffs claiming through
female were not entitled to any right in the management or
share in the offerings in the Dargah and even if they were
entitled to any right or claim the same was barred by limi-
tation.
Sayed Mohideen (since deceased) defendant No. 1 in the
suit filed a written statement and took the plea that his
father Sayed Gulam Dastagir was a Mujawar and was receiving
the offerings by right of inheritence. Sayed Ismail being
cousin brother of Sayed Gulam Dastagir as such he was also a
Mujawar along with Sayed Gulam Dastagir Sahib. Fathima Bee
the daughter of Sayed Gulam Dastagir had no right of Mujawar
as the right was given only to the male members and not to
the females. Fathima Bee as such was not entitled to claim
any right of Mujawar. The widows of Sayed Gulam Dastagir
also could not claim any right of Mujawar thus neither Wazir
Bee widow of Sayed Ismail nor Mohideen Bi the widow of Sayed
Gulam Dastagir could take upon the management of the Dargah
as they were female members. According to the defendants no
female members got the right of direct management of the
Dargah and the Judgment in Suit No. 116 of 1909 also nega-
tived the right of any management by Wazir Bee and Mohideen
Bi. It was admitted that though Fathima Bee was alive but
she was not a party to the aforesaid suit. It was however
pleaded that claim of Fathima Bee was not recognized in the
above suit. It was further alleged in the written statement
that Fathima Bee never participated in the management of the
Dargah. According to Muslim Law females were excluded from
performing the duties of the offices of Peshimam Khatib and
Mujawar. It was further alleged that Fathima Bee never
enjoyed the right to the Hundial Collection of the Dargah
and even if she had got any right, the same was lost as she
did not claim any right till her death. Fathima Bee never
asserted any right during her life-time nor received any
share in the offerings. Her right, if any, was extinguished
within 12 years after the death of her father Sayed Gulam
Dastagir. It was further alleged that as Fathima Bee had no
right or claim of share in the Mujawarship and was also
ousted from the enjoyment of any share in the Hundial Col-
lections, the plaintiffs who were claiming through Fathima
Bee were also not entitled to any relief. Defendants Nos. 2
to 6 adopted the written statement filed by the first de-
fendant. So far as the defendants Nos. 7, 8 & 10 were con-
cerned, they filed a written statement taking the plea that
the
523
family members were recognized as sharers in the management
of the Dargah and they were also sharing the income. It was
further alleged that even the answering defendants were
paying such share to their sister Ahamadunnissa (lOth de-
fendant) in the Hundial collection of the Dargah. The 7th
defendant (Anser Bi) filed a suit No. 75 18 of 1971 in the
Court of 4th Assistant City Civil Court and her right to
manage was recognised for 9 days in a year. Hence it was
false to state that the females were not entitled to claim
management. It may be mentioned at this stage that defendant
No. 1 Sayed Mohideen died during the pendency of the suit
and defendants Nos. 12 to 19 were added as his legal repre-
sentatives.
The Trial Court decreed the suit and in the operative
part held that the plaintiffs were entitled to manage the
Dargah for 27 days in February (viz. from February 1 to
February 27).
The defendants Nos. 3 to 6 and 12 to 19 filed appeals
aggrieved against the Judgment of the Trial Court while 7th
defendant in the suit filed cross objections in respect of a
particular portion of the decree. Learned City Civil Court,
Madras affirmed the Judgment and decree of the Trial Court
except some modifications in the relief as mentioned below.
"The Plaintiffs are entitled to the reliefs of
declaration that they are entitled to be in
management of the Suit Dargah for a period of
27 days in a year during the months of Febru-
ary-March, June-July and October-November each
year and that the said 27 days shall be Febru-
ary 1 to 6, June 1 to 6 and October 1 to 6 for
the first plaintiff and 9 days from July 1 to
9 for the second plaintiff and that the plain-
tiffs are entitled to the relief of possession
of the said right to be in management of the
Dargah and to be in enjoyment of the Hundial
income during the said period. The cross
objections of the 7th defendant is dismissed."
Different sets of defendants filed second appeals Nos.
650 & 894 of 1981, and both these second appeals were dis-
posed of by the High Court by order dated 17th November,
1981. The High Court allowed the second appeals and while
setting aside the Judgments and decrees of the Courts below
dismissed the suit filed by the plaintiffs. The High Court
took the view that the Courts below proceeded upon an erro-
neous assumption as if it was the duty of the defendants to
prove by what hostile assertions of title and possession
ouster has been established.
524
In the view of the learned Judge by allowing inaction, more
so when it was coupled with sharing of profits in not claim-
ing the profits at any point of time, there would arise a
clear presumption of ouster. The High court laid great
emphasis on the circumstances that Fathima Bee till her
death in 1957 did not care to make a demand of her right or
share at any point of time. It was further observed that
after the decree in Civil Suit No. 116 of 1909, it was only
male heirs who were exercising their rights. The High Court
in this regard further referred to the statement of P.W. 1
himself and drew the conclusion that after the death of his
mother nobody was employed as an agent. Only at the time
when he consulted the Vakil he came to know that his mother
had 36 days share in the Mujawarship. Before that he did not
do anything concerning the share of the Hundial collections.
The demand was from 1960 to 1972. But nothing was paid. He
knew that he had rights even before. The High Court on the
basis of the above evidence of P.W. 1 observed that it was
clear that the mother of P.W. 1 was aware of the filing of
Civil Suit No. 116 of 1909. Irrespective of that, in so far
as there was absolutely no evidence whatsoever to show at
any point of time till her death in 1957 that Fathima Bee
ever made a demand or asked for a share of the Hundial
collections as such it should be held that her rights had
become barred. The High Court in these circumstances held
that if really the rights of Fathima Bee had become barred
by her not exercising the rights, the plaintiffs themselves
can have no independent right to claim.
It may be mentioned at the outset that there is no
controversy now as regards the period of 27 days falling to
the share of the plaintiffs and on the question that females
are also entitled in the right and management of Dargah
according to Muslim Law. Thus the only controversy now left
to be determined is whether the High Court was right in
holding that the rights of Fathima Bee had become barred by
limitation by ouster and as such the plaintiffs who were
also claiming through Fathima Bee had lost their right by
ouster?
It would first be necessary to make it clear as to what
is the impact of the decree dated 11.8.1910 passed in Civil
Suit No. 116 of 1909, so far as the present litigation is
concerned. A perusal of the Judgment in the above case goes
to show that Sayed Moosa Sahib and Wazir Bi filed a suit
against Sayed Gaffar Sahib, Sayed Mohideen Sahib and Mohi-
deen Bi for a declaration that the plaintiffs and the de-
fendants were entitled to perform the duties of Mujawar of
the Dargah in turns and they were entitled to collect and
receive the offerings, gifts and other emoluments of the
Dargah as well as the collec-
525
tion of the hundi box in the Dargah and appropriate the same
in two equal moities and to settle a scheme for managing
the' said Dargah so as to equalize the amount of income and
emoluments to be collected and appropriated by both the
parties during their respective turns. In the said case a
decree was passed that the 1st plaintiff and the 1st & 2nd
Defendants were entitled to perform the duties of Mujawar of
the Dargah in question in turns. A scheme was also drawn for
collecting and receiving the offerings, gifts and other
emoluments of the said Dargah as well as the collections of
the hundi box and apportion the same in two equal moities
and that Sayed Moosa Sahib, the 1st plaintiff was entitled
to one half and Sayed Gaffer Sahib and Sayed Mohideen, the
1st and 2nd defendants were entitled to the other half of
the collections, offerings, gifts and other emoluments. A
great capital has been raised on the basis of the above
decree by the learned counsel for the defendant-respondents
that no share was given to the female members in the above
decree, namely, to Wazir Bi and Mohideen Bi and from this it
was clear that the females were totally excluded from the
right or claim of any share in the management or offerings
in the Dargah.
We do not find much substance in the above contention.
In the above judgment the controversy whether females were
entitled to any right or management of the offerings in the
Dargah was neither raised for decided. Fathima Bee though
alive but was not a party in the aforesaid litigation and
any judgment given in that suit cannot be held as res judi-
cata or binding on Fathima Bee or the present plaintiffs.
Mr. Krishnamurthy Aiyer, learned counsel for the defen-
dantrespondents contended that he was not arguing that the
aforesaid judgment and decree were res judicata or binding
on Fathima Bee, but his submission was that it should be
taken as a circumstances in proving ouster of Fathima Bee
from the fight or management of the Dargah or any claim in
the offerings. In our view as already mentioned such judg-
ment cannot be considered as an ouster of Fathima Bee cou-
pled with other circumstances which clearly show that there
was no ouster in the facts of the present case.
It is an admitted case of the parties that Sayed Gulam
Dastagir Sahib had a fight of management in the Dargah in
question for six months (180 days) in the months of Febru-
ary-March, June-July and October-November. Gulam Dastagir
had one daughter Fathima Bee and two sons and as such Fathi-
ma Bee got 1/5th share and which came to 36 days out of
aforesaid 180 days. Thus Fathima Bee was a co-sharer in the
right of management and possession of the Dargah as well as
the
526
offerings and hundial collection. Now, before considering
the question of ouster of Fathima Bee, it would be important
to consider the pleadings of the defendants in this regard.
Learned counsel for the defendant-respondents in this regard
have drawn our attention to paragraph 19 of the written
statement filed by 1st defendant Sayed Mohideen. Para 19 of
the written statement reads as under:
"Neither Fathima Bee till her death nor the
plaintiffs from her death till now had posses-
sion or management of the Dargah, None of them
had at any time received a share in the hundi-
al collection or offerings. Further there has
been expressed denial of Fathima Bee's title
at the time of the judgment of the High Court
in 1909, if she did not have a title according
to Muslim Personal Law that title was denied,
and she was expressly ousted out from the
enjoyment of any share in the hundial collec-
tions. From her death till now the plaintiffs
have not received any share in the hundial
collections".
A perusal of the above pleading show that the defendants
are claiming ouster on the basis of expressed denial of
Fathima Bee's title at the time of the judgment of the High
Court in 1909 and another ground taken is that neither
Fathima Bee nor the plaintiffs had at any time received a
share in the hundial collection or offerings nor had posses-
sion or management of the Dargah. The defendants are totally
mistaken in taking the ground that there was any expressed
denial of Fathima Bee's title in that litigation. At the
risk of repetition it may be stated that neither Fathima Bee
was a party in that suit nor any such question was raised or
decided that females were not entitled to any share in the
management or offerings of Dargah. Thus there was no ques-
tion of any expressed denial of Fathima Bee's title in that
litigation. It appears that the defendants were carrying a
mistaken impression all along that females under the Muslim
Law were not entitled to any right of management or posses-
sion in a Dargah and on that account they were pleading an
ouster of Fathima Bee as well as the plaintiffs. Such plead-
ing cannot be considered as an ouster in fact of a co-sharer
from a joint right. It is well settled that where one co-
heir pleads adverse possession against another co-heir then
it is not enough to show that one out of them is in sole
possession and enjoyment of the profits of the properties.
The possession of one co-heir is considered in law, as
possession of all the co-heirs. The co-heir in possession
cannot render his possession adverse to the other co-heir
not in possession merely by any secret hostile animus on his
own part in derogation of
527
the other co-heir's title. Thus it is a settled rule of law
as between co-heirs there must be evidence of open assertion
of hostile title, coupled with exclusive possession and
enjoyment by one of them to the knowledge of the other so as
to construe ouster. Thus in order to make out a case of
ouster against Fathima Bee or the plaintiffs, it was neces-
sary for the defendants to plead that they had asserted
hostile title coupled with exclusive possession and enjoy-
ment to the knowledge of Fathima Bee. The written statement
filed by the defendants in the present case is totally
lacking in the above particulars and thus apart from the
want of evidence, there is no proper pleading of ouster in
the present case. Thus it is clear that neither in the
written statement nor in reply to the notice of the plain-
tiffs any stand was taken that the right of Fathima Bee or
plaintiffs was specifically denied on any particular occa-
sion so as to put them on notice that from that date the
possession of the defendants would be adverse to the inter-
est or rights of the plaintiffs of Fathima Bee. We are
supported in the above view by a decision of this Court in
P. Lakshmi v. L. Lakskmi Reddy, [1957] SCR 195.
It is further proved from the evidence led by the plain-
tiffs that Fathima Bee was being looked after by her broth-
ers and she was in fact being paid portions of the income
from the Dargah and on that account she was satisfied in
allowing the brothers to enjoy the office of Mujawar on her
behalf also. The 13th defendant who has been examined as
D.W. 1 has admitted that Fathima Bee was living and was
being looked after by Sayed Gaffar and who had arranged for
and met the expenses of the marriage of the two plaintiffs.
This clearly goes to show that relations between Fathima Bee
and her brothers were cordial and as such there was no
question of any knowledge to Fathima Bee that she was being
ousted from her right or share in the Dargah. No evidence
has been led by the defendants to show that such right was
openly denied by the brothers which would be considered as
an ouster. The First Appellate Court had considered all
these aspects in detail after discussing the entire evidence
placed on record and had clearly recorded the finding that
there was no proof of ouster in the present case. The High
Court in our view committed a serious error in reversing the
above finding and in taking a wrong approach in holding
ouster on the basis of judgment and decree given in Suit No.
116 of 1909 and on the ground that Fathima Bee had not made
a demand or asked for her share of the hundial collections
at any point of time till her death in 1957.
Mr. Krishnamurthy Aiyer, learned counsel for defendants Nos.
528
12 to 19 submitted that according to decree given by First
Appellate Court the period of 27 days from February 1-6,
June 1-6 and October 1-6 for First plaintiff and 9 days from
July 1-9, for the second plaintiff acts onerous to his
defendants 12 to 19 and it must be fixed in a manner which
may be equitable to all the parties. The appellants and
their counsel Shri Tarkunde on the other hand submitted that
their share of 27 days may be fixed jointly and so far as
their own proportion of 18 and 9 days is concerned they will
make their arrangement inter se. After hearing learned coun-
sel for the parties and considering the entire facts and
circumstances of the case, we uphold the decree passed by
the First Appellate Court with the following modification in
the arrangement of days in the management of the Dargah in
question.
The plaintiffs would be entitled to such management from
17th. to 30th June and 1st to 13th July and in the next year
from 18th to 30th June and 1st to 14th July. This arrange-
ment would continue by rotation of each year. To be more
precise the plaintiffs would be entitled to have the manage-
ment of the suit Dargah from 17th to 30th June and 1st to
13th July in the year 1990 and 18th to 30th June and 1st to
14th July in the year 1991 and they shall continue to follow
such cycle by rotation every year.
For the reasons stated above, we set aside the judgment
and decree of the High Court dated 17th Nov. 1987 and re-
store that of the Trial Court as affirmed by the First
Appellate Court with modifications as stated earlier.
Parties to bear their own costs.
R.N.J.
529
