MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS.versusSAYED AHMED MOHINDEEN AND ORS.

     MOHD. ZAINULABUDEEN (SINCE DECEASED) BY L.RS.
                                                                                  A
                          v.
           SA YEO AHMED MOHJNDEEN AND ORS.

                             DECEMBER 15, 1989

                [K.N. SINGH AND N.M. KASLIWAL, JJ.]                               B

         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.

         Mohd. Zainulahdeen and Yasin Bi filed a suit for declaration that
    they were entitled to be in enjoyment and possession of Saint Syed            c
(
    Moosa Shah Khadiri Dargah in Madras for 27 days and to restrain the
    defendants from interfering with the plaintiffs' aforesaid right and
    management in the Dargah.

          In reply the defendant No. I alleged that in the management of the      D
    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 tost as she did not claim any right till her death and
    therefore the Plaintiffs were also not entitled to any relief. Defendants     E
    7, 8 and IO '!owever in their written statements admitted family
    members to lie sharer in.the income and management of the Dargah and
    they also admitted that they were paying such share to their sister
    Ahamadunnissa (10th defendant) in the Hundial collections and that the
    City Civil Court in snit No. 7518 of 1971 had also recognised the right of
    7th defendant Anser Bi to management of the Dargah for 9 days in a            F
    year. Thus it was false to contend that the females were not entitled to
    claim management.

          The trial conrt decreed the suit of the Plaintiffs and held that they
    were entitled to manage the Dargah for 27 days in a year. Defendants 3
    to 6 and 12 to 19 filed appeals against the judgment of the trial court.      G
    The City Civil Judge, howevr, affirmed the judgment of the Trial Court
    with some modificatios 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 judg-
    ment and Order dated 17th November, 1981 whereby it reversed the              H

                                       519
    520         SUPREME COURT REPORTS                 [1989] Supp. 2 S.C.R.

  ,judgments and decrees of the courts below and dismissed the suit med by
A 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
B   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 Judgment and
    Decree of the High Court and restoring that of the Trial Court as
    modified by the First Appellate Court,

           HELD: It is wfll settled that where one co-heir pleads. adverse
c   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 posses-
    sion of all the co-heirs. The co-heir in possesion cannot render his
    possession adverse to the other co-heirs not in possession merely by any
D   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 posses-
    sion and enjoyment by one of them to the knowledge of tjie other so as to
E   construe ouster. [527 Al

          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
F   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 I

          P. Lakshmi v. L. Lakshmi Reddy, [1957] SCR 195, referred to.

          CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3160
G   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 Kha.nna and A.S.
H   Khan for the Appellants.
    MOHD. ZAINULABUDEEN v. S.A. MOHINDEEN [KASLIWAL, J.] 521

     T.S. Krishnamurthy, K. R. Choudhary, S.M. Amjad Nainar
                                                                            A
and S. Thananjayan for the Respondents.

     The Judgment of the Court was delivered by

     KASLIW AL, J. This Civil Appeal by the plaintiffs is directed
against the Judgment of High Court of Judicature at Madras in Second        B
Appeal Nos. 650 & 894 dated 17th November, 1981.

       Mohd. Zainulabdeen and Yasin Bi filed a suit for declaration
that they were entitled to be in enjoyment and possession 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
                                                                            c
right and management in the Dargah. The case of the plaintiffs as set
up in. the plaint was that the Dargah in question was being managed by
the members of the family of one Sayed Mohideen Sahib. Sayed Mohi-
deen had two sons Sayed Ismail Sahib and Sayed Gulam Dastagir
Sahib. As per Judgment in C.S. 116 of 1909 the right of management          D
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 January, 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           E
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          F
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 Fathima Bee,
the plaintiffs being her son and daughter associated themselves in the      G.
management of the Dargah with their maternal 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        H
    522         SUPREME COURT REPORTS               [ 1989) Supp. 2 S.C.R.

A deceased maternal uncle were preventing the plaintiffs from exercising
  their right and enjoying the income of the Dargah. 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
B share in the offerings in the Dargah and even if they were entitled to
  any right or claim the same was barred by limitation.

           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
C   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 Mu jawar 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 Mu jawar. The widows of Sayed Gulam Dastagir
D   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 negatived the right of any management by Wazir
E   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
F   offices of Peshimam Khatib and Mujawar. It was further alleged that
    Fathima Bee never en joyed 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
G   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 Collections, 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 defendant. So far as the defendants Nos. 7, 8 & 10 were
H   concerned, they filed a written statement taking the plea that the
    MOHD. ZAINULABUDEEN v. S.A. MOHINDEEN (KASLIWAL, J.] 523

family members were recognized as sharers in the management of the
                                                                             A
Dargah and they were also sharing the incoine. It was further alleged
that even the answering defendants were paying such share to their
sister Ahamadunnissa (10th defendant) in the Hundial collection of
the Dargah. The 7th defendant (Anser Bi) filed a suit No. 7518 of i971
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    B
females were not entitled to claim management. It may be mentiont!d
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 representatives.

      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        c
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.     D
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          E
           for a period of 27 days in a year during the months of
           February-March, June-July and October-Novembef each
           year and that the said 27 days shall be February 1to6, June
           I 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
           plaintiffs are entitled to the relief of possession of the said   F
           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 disposed of by the High          G
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 errone-
ous assumption as if it was the duty of the defendants to prove by what
hostile assertions of title and (JOssession ouster has been established.     H
    524         SUPREME COURT REPORTS               [ 1989] Supp. 2 S.C.R.

A In the view of the learned Judge by allowing inaction, more so when it
  was coupled with sharing of profits in not claiming 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
B in Civil Suit No. 116 of 1909, it was only male heirs who were exercis-
  ing 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
C concerning the share of the Hun dial 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
D 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 circums-
   tances 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.
E
         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
F 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
G    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 Mohideen Bi for a declaration that the plaintiffs and the
     defendants were entitled to perform the duties of Mujawar of the
     Dargah in turns and they were entitled to collect and receive the offer-
H    ings, gifts and other emoluments of the Dargah as well as the collec-
    MOHD. ZAINULABUDEEN v. S.A. MOHINDEEN !KASLIWAL, J.] 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        A
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 Ist plaintiff and the Ist & 2nd
Defendants were entitled to perform the duties of Mujawar of the
Dargah in question in turns. A scheme was also drawn for collecting          B
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 Ist plaintiff
was entitled to one half and Sayed Gaffer Sahib and Sayed Mohideen,
the Ist and 2nd defendants were entitled to the other half of the collec-
tions, offerings, gifts and other emoluments. A great capital has been
raised on the basis of the above decree by the learned counsel for the       c
defendant-respondents that no share was given to the female m'embers
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.
                                                                             D
       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 judicata or binding on Fathima Bee or the present plaintiffs.         E

      Mr. Krishnamurthy Aiyer, learned counsel for the defendant-
respondents contended that he was not arguing that the aforesaid
judgment and decree were res judicata or binding on Fathima Bee, bnt
his submission was that it should be taken as a circumstances in prov-
ing ouster of Fathima Bee from the right or management of the                p
Dargah or any claim in the offerings. In our view as already mentioned
such judgment cannot be considered as an oust.er of Fathima Bee
coupled 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        G
Sahib had a right of management in the Dargah in question for six
months (180 days) in the months of February-March, June-July and
October-November. Gulam Dastagir had one daughter Fathima Bee
and two sons and as such Fathima Bee got I/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       H
    526         'SUPREME COURT REPORTS               [1989] Supp. 2 S.C.R.

A   offerings and.hundial collection. Now, before considering the question
    of ouster of Fljthima Bee, it would be important to consider the plead-
    ings of the qefendants in this regard. Learned counsel for the
    defendant-reswndents 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:
B
               "Neither Fathima Bee till her death nor the plaintiffs from
               her death tll now had possession or management of the
               Dargah. None of them had at any time received a share in
               the hundial collection or offerings. Further there has been
               expressed ·denial of Fathima Bee's title at the time of the
               judgment pf the High Court in 1909, if she did not have a
c              title accotding to Muslim Personal Law that title was
               denied, and. she was expressly ousted out from the en joy-
               ment of any share in the hundial collections. From her
               death till now the plaintiffs have not received any share in
               the hundial collections".
D
        A perusal of the abov 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
E possession or management of the Dargah. J'he 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 re'petition 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 di' offerings of Dargah. Thus there was no
F question of any expressed denial of Fathima Bee's title in that litiga-
  tion. It appears that the defendants were carrying a mistaken impres-
  sion all along that females under the Muslim Law were not entitled to
  any right of management or possession in a Dargah and on that
  account they were pleading an ouster of Fathima Bee as well as the
  plaintiffs. Such pleading cannot be considered as an ouster in fact of a
G 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
H merely by any secret hostile animus on his own part in derogation of
     MOHD. ZAINULABUDEEN v. S.A. MOHINDEEN [KASLIWAL, l.l 527

the other co-heir's title. Thus it is a settled rule of law as between
                                                                              A
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
necessary for the defendants to plead that they had asserted hostile
title coupled with exclusive possession and enjoyment to the know-            B
ledge 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 plaintiffs any stand was taken that the
right of Fathima Bee or plaintiffs was specifically denied on any
particular occasion so as to put them on notice that from that date the       c
possession of the defendants would be adverse to the interest 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. Lakshmi Reddy, [1957]
SCR 195.
                                                                              D
      It is further proved from the evidence led by the plaintiffs that
Fathima Bee was being looked after by her brothers 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 en joy 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          E
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 cor-
dial 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            F
was openly denied by the brothers which would be cosidered 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 thefinding that there. was no proofof ousfer 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         G
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.            H
    528         SUPREME COURT REPORTS                  [1989] Supp. 2 S.C.R.

A 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
B 27 days may be fixed jointly and so far as their own proportion of 18
  and 9 days is concerned they will make their arragnement inter se.
  After heaing learned counsel 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.
c       The plaintiffs would be entitled to such management from 17th
  to 30th June and !st to 13th July and in the next year from 18th to 30th
  June and !st to 14th July. This arrangement would continue by rota-
  tion of each year. To be more precise the plaintiffs would be entitled to
  have the management of the suit Dargah from 17th to 30th June and
D !st to 13th July in the year 1990 and 18th to 30th June and !st 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 restore that of
E the Trial Court as affirmed by the First Appellate Court with modifica-
  tions as stated earlier.

          Parties to bear their own costs.

    R.N.J.


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