KUMARAPPA CHETTIAR Vs. SAMINATHA CHETTIAR ALIAS AVATHA CHETTIAR

JUDGEMENT

(1.) I have had the advantage of reading the judgment prepared by Seshagiri Aiyar, J., and will state my conclusions very briefly. If the property was undivided and Article 127 is applicable, I entirely agree with him that to bar the plaintiff there must be exclusion from the whole of the joint family property and that exclusion from the suit property only will not do. The decision in Vishnu Ramachandra v. Appaji Chaudhari (1895) I.L.R. 21 Bom. 325 appears to me to be opposed to the decree of the Privy Council in the Balgaum case (1897) I.L.R. 20 M. 256 and to the other cases cited by my learned brother as well as to the language of the article and I am unable to follow it. Assuming however that a division must be presumed to have taken place, it is said that Article 127 does not apply because the plaintiff is not a person excluded from joint family property within the meaning of the article but only a tenant in common excluded from the common property. The words "Joint family property" are used in the corresponding Section 1 Clause 13 of the Act of 1859, and I think the scope of the two enactments is the same though the starting points of limitation are different. It is in my opinion unnecessary to review the decisions on the question whether the words joint family property in the article apply where there has been a division in status but no division of immoveable properties by metes and bounds. In such a case if Article 127 does not apply Article 144 must apply. Under that article the suit would not be barred, as the possession of one tenant in common is the possession of all, and is not adverse to his co-tenants in the absence of clear evidence of ouster, Corca v. Appuswamy I.L.R. (1912) A.C. 230. The Subordinate Judge has not found that there was anything amounting to ouster in this case and there is no sufficient evidence of it. I agree with the order proposed by my learned brother. Seshagiri Aiyar, J.

(2.) This is a suit for partition. Defendants 1 and 2 represent one branch; defendants 3, 4 and 5 the second branch; the 6th defendant the third branch; and the 7th defendant the 4th branch. The fifth branch is not represented in this litigation. Defendants 8 to 12 are alienees from defendants 3 to 7. The plaintiffs purchased the suit properties from defendants 1 and 2. The plaintiffs case is that the family was divided and that as purchasers from defendants 1 and 2 they are entitled to the sole possession of the properties in the suit. They also set up the alternate plea that defendants 1 and 2 had acquired title by prescription to the properties.

(3.) The defence is that the members of the family are undivided and that the plaintiffs are not entitled to more than a fifth share in the properties conveyed to them. The Subordinate Judge held that as the plaintiffs vendors were in exclusive and hostile possession of the suit properties for more than 12 years they were competent to convey them to the plaintiffs. He also expressed the opinion that the five branches had become divided in status, though the properties were not divided by metes and bounds. The appeal was argued on the supposition that the finding as to division of status was correct without deciding the point.