Only Co-Owners Can Claim Benefit Of Section 44 Of Transfer Of Property Act: Kerala High Court

Factual Background

The issue came up in a Second Regular Appeal before the High Court. The property in issue extends to ½ share of 98 cents of land and a residential building in it originally owned by late Anandarama Gowder. During the family partition, half of this property was given to his son Devaraja Gowder and the other half was given to another son Subbayya Gowder. The 3^rd son is the 1^st defendant in the original suit. 1^st and 2^nd plaintiffs had bought the share of Devaraja Gowder. 1^st defendant was residing in one portion of the building with the permission of Devaraja Gowder. After the sale, the plaintiffs filed a suit for mandatory injunction to vacate the defendants.

The defendants' argument was that he had exchanged his house at Kunnathermedu to Devaraja Gowder for Devaraja's share in the 98 cents. Therefore, they are not residing there as a licensee. Another argument was that they had acquired the right by adverse possession and limitation. They also contended that since the defendants were residing at the property even at the time of family partition, the plaintiffs should have filed a suit for recovery of possession and not one for mandatory injunction. Another argument was that since the property is the family house of the defendants and the other co-owner Subbayya Gowder, the plaintiffs who are not family cannot seek recovery possession of the same, without a prayer for partition.

High Court Verdict

The High Court observed that since the defendant could not prove the exchange of his property in earlier proceedings in lower courts, he can be considered only as a licensee of Devaraja Gowder. The Court relied on an earlier decision of the High Court in Rajappan v Veeraraghava Iyer and said that though exclusive possession is given if the possession is permissive, it does not amount to a lease.

It observed that the defendants had also admitted that they were occupying the house with the prior permission of the former owner. This settles the status of the defendants as a licensee. Since the defendant is not co-owner of the property, they are not entitled to the benefit of second paragraph of Section 44. The Court further held that the defendants would also not be eligible for the benefit of Section 4 of the Partition Act as they are not shareholders of the house.

On the question of whether the plaintiffs can file the suit without impleading the other co-owner, the court said that one co-owner could sue a third party for recovery of possession, without the juncture of other co-owners. The court relied on Merly Thomas Kuriakose v Dr. George Kuriakose and Valsala V Sundaraman Nadar to decide the same.

The Court then considered Aspinwall and Co. Ltd v Soudamini Amma and George v John. Aspinwall and Co. says that if on the expiry of the license an assertion of a hostile title is made by the licensee and the licensor sleeps over the matter then the occupation of the licensee can be considered to have been converted into one of possession of a trespasser.

In George (supra), it was held that lawful possession however long will not be adverse and it is only adverse possession that leads to acquisition of title. In the present case license was terminated on 12.07.2023 and suit was filed on 21.07.2023. The suit was filed without any delay and there was no occasion for the defendants to change their character from that of a licensee to that of a trespasser. Therefore, the present suit for mandatory injunction is sufficient and there is no need to file a suit for recovery of possession.

Thus the Court held:

“Since the suit was filed immediately on termination of license, suit for recovery of possession is not required in this case. Similarly, since the suit is not for pre-emption, absence of any prayer for partition is not fatal to the plaintiff's case. The substantial question of law is answered accordingly.

Accordingly, the appeal was dismissed.

Counsel for Appellants: Advocates Sajan Varghese K., Liju M.P.

Counsel for Respondents: Advocates K. Jayakumar, P.B. Krishnan

Citation: 2024 LiveLaw Ker 323

Case Title: A. Sivalingappa Gowder @ Sivaraj Gowder and Others v M. A. Anidas and Another

Case No.: R.S.A. No. 943 of 2008

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