The Right of Way Used by the Villagers or the People of Locality  Between the

Ridges of Two Paddy Field Owners -- Whether it Could be  Extinguished in Case the 

Level of Paddy Fields on Both Sides of the  Ridge is Raised by Filling up by Earth

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

The titled question has become a very vital legal aspect in the present day, when the tendency is to level up the paddy fields by the land mafia.

A simple example will elucidate and clarify the question.

A and B are the owners in possession of respective adjacent paddy fields. Between the paddy field of A and B there is a ridge. It is through that ridge that the people of the locality or community pass and repass to go to their respective houses or fields. A and B sell their paddy fields to strangers. These strangers level up the paddy fields on both sides of the ridge and thereby cause extinguishment of the customary right of villagers.

Ouster  and  Adverse  Possession  Among  Co Owners/Co Sharers 

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

Generally there cannot be any adverse possession by one co-owner against others, until there is ouster or exclusion and the possession of one co-owner becomes adverse to another co-owner from the moment when there is an ouster, i.e. after there is an assertion of a hostile title by one co owner against the other and to the knowledge of the latter

 (AIR 1936 Cal. 106 (Nirmal Chandra v. Mohitosh)

As regards co owners, the law is well settled that, there can be no adverse possession by one co owner, unless there has been a denial of title and an ouster to the knowledge of the other.

AIR 1932 All. 393 (Subah Lal v. Fateh Mohamad)

The Supreme   Court has, very clearly laid down that the possession of one co owner cannot be adverse to the other co owners, unless there is denial of the latter’s right to their knowledge by the person in possession, and exclusion and ouster following thereon for the statutory period.

AIR 1956 SC 546 (Mohammed Baqar v. Nairn- un-nissa)

As regards co owners, the law is that there can be no adverse possession by one co owner unless there has been a denial of title and an ouster to the knowledge of the others;   and the same principle applies to the case of a transferee from a co owner, who professedly takes a transfer of the whole property from him. There can be no difference in principle whether a person is the original co owner or has become a co owner by virtue of a transfer. 

AIR 1947 Pat. 99 (Dipnarain v. Pundeo)

For every general rule there are exceptions. They are:

1. In the absence of evidence to show that there is any manner of sharing of profits of the property and with the evidence that one of the sharers has been acting, as if he is entitled to it, such open and exclusive enjoyment of property for a long number of years amounts to ouster of the rights, if any, of the other sharer. (Adichan Ayyan v. Kurumpi - 1975 KLT 293) (Soopi v. Moosa - 1986 KLT 121).

2. Of course, there cannot be any straight jacket formula to decide on the issue of adverse possession and ouster among co owners. 

3. The Supreme Court in 2010 (1) KLT Suppl.  57 (SC) = 2010 Sar Civil 198 (Nelapatla Ramaiah &  Ors. v. Kamatam Bikshamaiah &  Ors.) has held that where properties changed hands on different occasions without any objection being taken at any point of time by the other co owner such possession is hostile and adverse to the intent of the plaintiff.

4. The Supreme Court in the decision reported in (2009 (3) KLT Suppl. 713 (SC) = 2009 Sar Civil 684 - L.N. Aswathmma v. P. Prakash) has held that when a person is in possession asserting to be true owner, even if he fails to prove his title, his possession would still be adverse to the true owner and the two pleas, one ascertaining title and the other setting up of a plea of adverse possession are not inconsistent pleas but only pleas in the alternative.

5. Under the Limitation Act also, the ousted co owner may not be able to recover possession from the other co owner. Where different daughters who jointly succeeded to the estate of a person, one of them excluded the other from enjoyment of the estate for more than 12 years and had also alienated some of the properties, then there is extinction of the right to joint possession under S. 28 of Limitation Act 1908, now S. 27 of Limitation Act, 1963. The right of survivorship which is only an accretion to the right to joint possession is also lost. (AIR 1930 Nag. 142 (Jagatram v. Pital) has laid down that the expression “right to such property” under S. 28 of 1908 Limitation Act (Now 27 of 1963 Act) includes the right to joint possession. A person whose right to recover joint possession is extinguished as per the relevant article in the Limitation Act (Art. 65) cannot elude the extinguishment by filing a suit. 

6. Section 27 of Limitation Act 1963 provides that, at the determination of the period limited by the Act, to any person for instituting a suit for possession of any property, his right to such property shall be extinguished. In (1966 KLT 1084 = 1966 KLJ 597 - G.P. Ribera v. Varghese Kurien) Division Bench has held that if that party, who is not in possession for 12 years and whose suit for possession is barred, is again let into possession, he is not remitted to his old title. The principle is that, when the title of the former owner has been extinguished by prescription, his title is not restored and he will be treated as a trespasser, should he come into possession again.

7. Conduct by way of non-participation in the enjoyment of the profits of the property or absence of objection to the exclusive enjoyment by the other co owner and also denial of one’s own right as a co owner and possession of another to the exclusion of the other heir amounts to clear evidence of ouster as per S. 27 of Limitation Act 1963 and Art. 65.

AIR 1954 SC 337 (Chanabavana Gowd v. Mahabaleswarappa) and  AIR 1963 AP 121 (D.R. Adinarayan Swamy v. Girraju Pappamma) lay down this principle.

8. The above principles have been followed by Division Bench of Kerala High Court in (Ammini Tharakan  v.  Dr. Lily Jacob) decided on 17.10.2013.

9.  The following decision are also of help in this regard. :-

1968 KLT 779 (F.B.) (Cicily v. Sulaikha Beevi).

1969 KLT 121 (D.B.) (Soopi v. Moosa)

1987 (2) KLT 59 (D.B.) (Sainaba Umma v  Moideenkutty)

1985 KLT SN 34 (C.No.50) = ILR 1986 (1) Ker. 391 (P.K. Madhavi Amma v. M.M. Appu Nair).  Ouster need not be violent nor formally be communicated. 

AIR 1926 Cal. 881.  Ouster can be actual or constructive. 

AIR 1928 Cal. 216 at 217,

ILR 46 Bom. 213, AIR 1961 Mysore 244 (para 15), 

AIR 1938 Lahore 367, 

AIR 1919 P.C. 44, 

AIR 1929 Pat. 624, 

ILR 1970 (2) Mad. 634

10. As stated earlier, for every general rule there is an exception.  Ignorantia.

Juris-non excusat.  Ignorance of law is no excuse. This is the basic principle which any law college will teach the beginner in law. But to this also there are exceptions.   It is often said that everybody is presumed to know the law.  But that is not correct statement. There is no presumption in this country that everyone knows the law.   It would be contrary to common sense and reason if it were so.

1979 KLT SN 5 (C.No. 8) SC = AIR 1979 SC 621 at 629 para 6 [M.P.Sugar mills v. State of U.P.] (1846)   2   Common Bench Reports  (C.B.)   (1845 -1856)     2   706  Martinda v. Falkner v. Falkner ( 2 C.B. 719)   is followed in AIR 1986 SC 806 (Union of India v. Godfrey Phillips India Ltd.) though it is used in relation to promissory estoppels.

Even ignorance of law may be held to be sufficient excuse if it were made honestly and in good faith.

18 Cochin Law Reports 8 DB refers to ILR 13 Mad. 269 and ILR 21 Bom. 552.

Regarding Gazette Publication.   The maxim that everybody is presumed to know the law cannot be extended to all events, especially in relation to Gazette Notification, as the same has not support of any legal provision.Section  1 of Evidence Act only says that the court shall presume genuineness of anything in Gazette.   But S. 81 does not say that every citizen knows the contents of Gazette.

Notification

ILR 1989 Karnataka 920 (Para 8) (Union of India v. Sterling Varnishes)  ILR 1993 Karmt. 1548 (paras 12 to 14,16 and 21) Indo Nissan Foods Pvt. Ltd. v. Appraiser of Customs has ruled that accessability to the Gazette, that makes contents   of Gazette   Notification,   an   effective   notification.   A   purported notification; merely printed in the Gazette and kept without the four walls of the Government press would not be available for the public to read it; it cannot result in notifying the contents to the public.  This is a case under S. 25 of Customs Act, 1962.

Similarly publication in gazette is hardly a proper substitute for personal service.

AIR 1972 Mad. 8.

This is followed in AIR 2000 SC 1102 (Union of India v. Ganesh Das Bhojry) and

AIR 1998 SC 668 (ColIector of Central Excise v. New Tobacco Co.)

What  Sin  I  Have  Committed ?

(By A.S.P. Kurup, Advocate High Court of Kerala)

I am beautiful to look at and handsome indeed. I stood in the courtyard of Ram Mohan Palace for many summers and prolonged winters, enjoyed the cosmic rays during every sunrise and sunset, moonlight was showered in abundance upon me and torrential rains washed mud and dust from my body and I remained clean and calm for years. My body is made of monumental alabaster. Nothing is known about that fertile and aesthetic mind which once upon a time conceived me and translated and transformed to the present shape. Even the creative hands and the blessed fingers that carved me to a final shape is no more and not known now. What remains is what I am today as chosen and chiseled to perfection personified.

I saw the bloom and blossom of many young lawyers and their transformation into shape of Titans or decline as Pigmies in profession; jubilant elevation of judges and the inevitable retirement and further retreat in life; heard the sad life stories of many clients; chit chat of clerks waiting for daily list of cases, enjoyed the eternal fragrance of flowers around me and witnessed the withering away of petals and the fluttering of dry and dead leaves during cool, desolate summer darkness and always remained as a silent spectator of time and space.

Alas! On a fatal day, few musclemen came with tools and rope and suddenly lifted me from the place where I stood for many years. My joy was boundless, turning to bliss and culminating as ecstasy, as I thought for a moment that my ardent lovers and best wishers are shifting me to the new High Court compound and erect me in the beautiful garden of that majestic mansion to form an integral part of it. But it was a vision and a dream of momentary existence.

To my great shock and surprise I was removed to a corner of the compound and made me to stand there and witness the construction of the new chamber complex. I trembled during the pile driving and got perplexed when metal and cement fell on my pure body. I consoled myself that, at least when the construction is over I will be given a place in front of the chamber complex. Alas! It was a hope in vain.

During the period of the whole construction my body was covered with old tarpaulin and tightly packed with rope and every moment I felt that I am going to be placed in a dark coffin to be buried in a grave yard. But I am not buried so far. I survive with my perpectual agony and anguish,   eternal    misery   and   endless   suffering   and suffocation without any free air and water being the gift of God and Nature.

Oh! My beloved Chief Justice and the compassionate companion Justices, Oh my Advocate General, a born artist destined and engaged to resolve the riddles of the State, Oh my President of the Advocates’ Association walking ahead of many thousands of members bestowed with legal brain and consisting of connoisseurs of art, lovers of nature, political philosophers and philanthropists, writers and poets.

Oh my beloved ones! Please come to this neglected spot, think of me at my best and listen to the subdued voice of a throbbing heart and wipe off the hot tears that flow from my eyes. Absent thyself for a moment from your daily legal battle in court rooms and liberate me from this endless bondage of solitary confinement.

Ye, Gentlemen! I constantly cry and appeal to your head and heart for mercy. It is a cry in wilderness, unheard and unnoticed by all. What sin I have committed to you for this eternal suffering and perpetual suffocation. Can any one console, salvage and liberate me?

At least remember that I am a piece of art which purifies mind, sublimates passion and takes the sole to an ethereal plane, where there is nothing but ecstasy.

At last I console myself “if Winter comes, can Spring be far behind?”

Chandra Mohan v. Surendran  -- 2013(3) KLT 269  - An Academic Review

(By T.G. Michael, Advocate, High Court of Kerala)

In the above decision a Division Bench of the Kerala High Court has dealt with the effect of Section 13 of the Transfer of Property Act. The question involved in the case  was about the effect  of a  Gift Deed created by a Father  gifting an item of immovable property in favour of his wife and for the benefit of future children born to him in the wife. The rival arguments mainly advanced by the parties appears to be that the appellant took the position that when a transfer of immovable property is effected by a gift deed  in favour of the  living wife and future unborn children,  the transaction is hit by Section 13 of the Transfer of Property Act and the net outcome will be that the wife will get the full rights and title in the property since the future children are not born or in existence at the time of transfer. At the same time the contention of the Respondents  appear to be that the said portion of the conveyance gifting the property in favour of future children would take effect in the sense that it could be construed as the creation of a trust in favour of the children to be born in the said wife making the latter as the Trustee  and the resultant situation would be that the property would be taken by the mother in half  moiety and the future children together would take the other half. The Hon’ble Court appears to have accepted the second view. My humble view  is that the said view adopted by the Court is not the correct application of the law in the matter  for more than one reason. 

First of all I feel that in the  creation of Trust, the Trustee will be the owner of the property who will hold it for the benefit of the beneficiary. The ownership will never vest with the beneficiary by efflux of time or operation of  law  without transfer inter-vivos. So it cannot be held that the future children would take the property as co-owners with their mother. Even though the Court refers to Section 9 of the Indian Trust Act, that section only says that any person who is capable of holding property can be a trustee. 

Secondly I feel that the effect of Section  14 of T.P. Act should have been  in the reckon at the bar. The Rule against Perpetuity contained in Section 14 of the T.P. Act lays down that a transfer of property cannot be extended beyond the life time of a person living and the minority of the person to be born. Gift of immovable property also being a transfer, S.14 would apply to the gift in question and so considering, the transfer in favour of future children would have no effect. 

Thirdly the Hon’ble Court appears to have been carried away by a notion that  what is contemplated in Section 13 of Transfer of Property Act is a transfer in parts or fractions of the property with remaining parts in favour of unborn persons. But what is contemplated in Section 13 is transfer of a prior interest in favour of a living person with transfer of the remaining interest in favour of the person to be born.  In other word a limited estate is created in favour of the living person, which would take immediate effect with deferring of the vesting of remaining interests in the person to be born. My humble view is that the above legal principles should have unfolded at the bar in the consideration of the issues in the case.

Some  Thoughts  about  an  Immortal  Giant

(By K.G. Balasubramanian, Advocate, High Court of Kerala)

“An accomplished lawyer, an acclaimed judge and jurist, friend, guide and philosopher, a role model to everyone” will be insufficient clichés to describe late Sri TLV.

As an individual, he belonged to the category of God’s rare gift to society, as a person who could never be found fault with.

My first meeting with TLV was in late 1970s, when my father used to ask me to run errands between them. My association with him developed further after I joined the bar. He was always ready with more than one answer to any legal problem, each answer supplementing the other so that there could not be any other or better answer. Believe me, some of us were discussing the mechanics of elevation and prospects of the proposed Judicial Appointments Commission a couple of weeks ago. The participants were unanimous that TLV was one of the last few judges elevated only on the basis of pure and sheer merit. His love for the bar was so great that he tried to avoid elevation, but had to succumb to the affectionate compulsions of well wishers and overwhelming professional inevitabilities prevalent in the system.

He did full justice to all the roles he had to play in life, with dedication and perseverance. I wish there were more of his kind. The arena of lawyers and judges has been phantasmagorical during last 50 years. The aura generated by generations of masterly lawyers attached itself to TLV most admirably, who graciously carried it as a torchbearer. He had maintained that mediocrity had no place in the profession.

His quest for the right answer was untiring, a fact spoken to by his immense library and long hours at office. His matter-of-fact approach to problems and realistic solutions thereto disarmed his opponents. His scholarly arguments, as a lawyer, were likewise matter-of-fact. His reaction to unacceptable propositions was politely cautious. His criticism of judgements was rare, voiced only on unavoidable occasions. I cannot recall a single instance when he criticised any judge. He believed in ensuring that juniors went to court only after fully arming themselves to go to war. Though he was an all rounder, his heart had a special place for tax laws.

I recall, with fascination, the immaculate dignity and poise with which TLV carried himself, from our first meeting till we met last. His candid manners as an advocate and judge and as an advocate again won him ready acceptance everywhere. I believe he was the only lawyer from Kerala who gained rare appreciation from the apex court at a very young age. His reputation and acceptance at Supreme Court boosted the confidence of the trickling-stream-of-Kerala-lawyers into a torrential exodus to Supreme Court.

As a lawyer, his grasp of law was immeasurable. As a judge, his application of law was intense. Discipline, on the bench and off it, was a quality he emphasized and practised. I may not be misunderstood when I write that he foresaw the declining standards beginning to roost in the system and tried his best to prevent the malady. An ever pleasant judge, his judgements were precise, without overlooking facts or forfeiting precedents. It was not in his nature to dampen a lawyer’s enthusiasm by reacting sharply to an erroneous proposition or to short-circuit his arguments. His view was that a client should know from the judgement how his case was argued and understood, why it was decided in a particular manner. 

As a lover of fine arts and social service, his involvement and contribution were unlimited. The legal fraternity and public showed their regard for him on the occasion of the public reception hosted in his honour, when they turned up en masse and thronged the auditorium. I do not think another lawyer or judge will ever find such joint acceptance.