KARBALAI BEGUM versus MOHD. SAYEED AND ANR.

KARBALAI BEGUM versus MOHD. SAYEED AND ANR.

The law does not recognize ouster of a co-sharer by mere non-participation in profits or possession unless ouster is pleaded and proved. Constructive trust arises between co-sharers, so the possession of one is in law the possession of all. Fraud by the respondents in deleting the appellant's name from records was a finding of fact that could not be interfered with in second appeal. No statutory bar was found under s. 49 of the U.P. Consolidation of Holdings Act to the present suit.

Parties
Appellant: Karbalai Begum; Respondent: Mohd. Sayeed; Respondent: Mohd. Rasheed (deceased, represented by Smt. Shakira Bano)
Jurisdiction
India
Judgment Date
07 October 1980
Procedural Posture
Civil Appeal / Appeal by Special Leave From the Judgment and Order Dated 5 4 1978 of the Allahabad High Court (lucknow Bench) in Second Civil Appeal No. 90/75
Outcome
Appeal allowed
Legal Topics
Co Sharers' Rights, Ouster, Adverse Possession, Constructive Trust, U.p. Consolidation of Holdings Act
Property Law Co Sharers' Rights Ouster Adverse Possession Constructive Trust U.p. Consolidation of Holdings Act

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Parties

Karbalai Begum

Appellant

Mohd. Sayeed

Respondent

Mohd. Rasheed (deceased, represented by Smt. Shakira Bano)

Respondent

Procedural Posture

Civil Appeal / Appeal by Special Leave From the Judgment and Order Dated 5 4 1978 of the Allahabad High Court (lucknow Bench) in Second Civil Appeal No. 90/75

Legal Issues

  1. 1 Whether mere non-participation by a co-sharer in rent and profits of land amounts to ouster and gives title by adverse possession to the other co-sharer in possession?
  2. 2 Whether the deletion of the appellant's name from revenue records by the respondents amounted to fraud?
  3. 3 Whether the suit is barred by s. 49 of the U.P. Consolidation of Holdings Act, 1953?

Ratio Decidendi

The law does not recognize ouster of a co-sharer by mere non-participation in profits or possession unless ouster is pleaded and proved. Constructive trust arises between co-sharers, so the possession of one is in law the possession of all. Fraud by the respondents in deleting the appellant's name from records was a finding of fact that could not be interfered with in second appeal. No statutory bar was found under s. 49 of the U.P. Consolidation of Holdings Act to the present suit.

Court Disposition

Appeal allowed

Orders

  • The judgment of the High Court is set aside.
  • Plaintiff's suit decreed for joint possession over plots 201 and 274.