VELAYUTHAM PILLAI Vs. SUBBAROYA PILLAI

JUDGEMENT

(1.) The properties in suit belonged to one Cholla Pillai. He sold the properties to one Palamalai and obtained an agreement to reconvey the properties. After the death of Chella Pillai, the plaintiff as one of the reversioners sued his widow and the purchaser Palamalai in 1885 for a declaration that the property was only subject to a mortgage and that the alleged sale did not pass an absoulte interest to the purchaser. The decree in that suit was that the plaintiff was entitled to redeem the properties after the death of the widow in case she did not redeem the properties herself. After this decree, Palamalai sold the properties in 1893 to the father of the third defendant and put him in possession. The widow died in 1900. On her death, the heirs of her husband were the plaintiff and the third defendant. Plaintiff instituted this suit for redemption. The third defendant pleaded among other things that as he and his father were in possession since 1893 under a sale from a mortgagee they had perfected their title by prescription against the plaintiff at the date of the suit. Article 134 of the Limitation Act was relied on. The District Munsif dismissed the suit on the ground that the legal representative of the original mortgagee was not impleaded. On appeal, the Subordinate Judge differed from the lower Court on this question and decreed the claim, holding that the suit was not barred by limitation. In Second Appeal, we called for a finding whether the father of the third defendant had knowledge of the decree obtained by the plaintiff in 1885. The finding is in the negative.

(2.) We agree with the conclusion of the lower Appellate Court. It is true that the possession taken by the father of the third defendant, could have been perfected under Article 134, as the property was sold to him by a mortgagee. But before twelve years were over, a new right accrued to the third defendant. He became the heir to the property with the plaintiff in 1900. The plaintiff, is entitled to say that when succession opened to him, a co-parcener of his was in possession and that that possession was not adverse to him unless and until he was excluded notoriously. If the third defendant wanted to rely upon his right as a purchaser from the mortgagee, he should have put that forward to the knowledge of the plaintiff. There are not many authorities bearing on the question.

(3.) In Tarubai v. Venkata Rao (1903) I.L.R. 27 Bom. 43, Batty, J., says: "In the second, when there has been no such ouster as to give notice of the adverse nature of the possession, it is incumbeat on the parson alleging that the title set up against him is barred by twelve years adverse possession, to show, not only that his possession has lasted for twelve years, but that it has all the time bean in open conflict with the title on which the plaintiff relies. The result is, as above indicated, if there has been no ouster or "open and notorious act of taking possession," then the person relying on his possession to defeat title, must show that it was of such a nature, and involved the exercise of rights so irreconcilable with those claimable by the plaintiff, as to give the plaintiff occasion to dispute that possession (or, in other words, that it was such as to give a cause of action or right to sue for possession) throughout the twelve years next preceding the suit." The language of Article 144 which speaks of possession "becoming adverse" supports this view. Reference may also be made to Asansab Ravuthan v. Vamana Rau (1878) I.L.R. 2 Mad. 223 and Moidin v. Oothumanganni (1888) I.L.R. 11 Mad. 416. The decision in Ponnuswamy Iyer v. Permaye (1914) 16 M.L.T. 530 is in favour of this position. There is no doubt that possession held by one of the co-owners will not be adverse to the others until they have notice of the hostile claim. The difficulty in this case arises from the fact that possession was hostile when it commenced. We have not been referred be any authority which shows that such a possession continues to be hostile notwithstanding the accrual of a peaceful title before the completion of the adverse possession, Possession should be prima facie attributed to a lawful title; we think the third defendant on the death of the widow must be deemed to have held the property on behalf of the plaintiff as well.