SORIMUTHU THONDAMAN Vs. PERUMAL AMMAL

JUDGEMENT

(1.) THIS second appeal arises out of a suit brought by the plaintiff-respondents to recover possession of two items of property described in the plaint. Defendants 1 and 2 set up title to the suit property by virtue of a sale effected by defendant 3 (now dead), who was the elder brother of the plaintiff. That the suit properties constituted the stridhanam properties of the plaintiff's late mother is a fact beyond dispute in this case. That being so, the plaintiff would be the nearest heiress entitled to the suit properties on the death of her mother Parvati, which took place in 1901. The main question for consideration in this second appeal is whether the plaintiff's claim to the suit properties is barred by limitation under Art. 144, Lim. Act, by reason of the alleged adverse possession of defendant 3 and his alienees, defendants 1 and 2. According to the finding of the lower appellate Court, the plaintiff's father who married a second wife practically lived with her and the children born to her in other places, and did not exercise his powers of managership over the rest of the family consisting of his other sons, namely, defendant 3 and his minor brother and also their sister, the minor plaintiff. The lower appellate Court further finds that it was defendant 3, as the next senior male member of that family, in fact exercised the powers of kartha or manager of the family. It is also in the evidence of D.W. 3 that defendant 3, his brother and the present plaintiff, were living in a house in Parvati Singh Raja, St. Even D.W. 4 would say that the plaintiff-defendant 3 and his brother were living in that street. No doubt the plaintiff in her evidence says that she was living in the house of her maternal uncle. That house appears to be in the same street as stated by D.W. 3. It is not unnatural for the plaintiff, while she was a minor girl, to go to her maternal uncle's house and be there for some time. From the oral evidence on record, it cannot be inferred that the minor plaintiff went over to her maternal uncle's house and that she was never under the control and guardianship of her elder brother, defendant 3. If the plaintiff was also living along with her brothers, and defendant 3 as the eldest brother assumed control and management of the family properties, it would not be a wrong inference that the plaintiff during her minority was at least under the de facto guardianship of defendant 3. It cannot be contended with any degree of force that there is no evidence at all upon which the lower appellate Court has found that defendant 3 was to all intents and purposes the guardian of the minor plaintiff during her minority. The fast that her maternal uncle was managing her mother's properties does not exclude the possibility of defendant 3 being a de facto guardian of the plaintiff. If the plaintiff was allowed to live in her family and receive support from out of the family properties during her minority, that is enough to hold that defendant 3 was occupying a fiduciary position.

(2.) IF that be the sort of relationship between the plaintiff and her elder brother (defendant 3), what is the reasonable inference as to the character of defendant 3's possession of the suit properties, to which, of course, the plaintiff had legal title? It is not until 1907, when defendant 3 executed a mortgage deed, Ex. 6, that there is any tangible proof of his asserting a title to the suit properties, ignoring the plaintiff's rights. In that deed, though reference was made to the fact that these properties were owned by his mother, he however described them as belonging to him and his minor brother whom he represented as his guardian. IF under Ex. 6 he should be deemed to have set up a title for himself hostilely to the plaintiff, the question arises as to whether he could be allowed to prejudice the rights of the minor plaintiff for whom he was in the position of a de facto guardian. The principle of the decisions in Vasudeo Atmaram Joshi V/s. Eknath Balakrishna [1911] 35 Bom79 and Sriramulu Naidu V/s. Andalammal [1907] 30 Mad. 145 would well nigh apply to a case of this kind. The lower appellate Court is, in my opinion, right in viewing the character of defendant 3's possession prior to 1907 in accordance with the principles laid down in these rulings. So long as the properties were in the possession of defendant 3 or his mortgagee as a derivative owner, it could not be legally deemed to be adverse to the minor plaintiff within the meaning of Art. 144, Lim. Act. But since 1910, when the suit properties passed to defendants l and 2 by reason of the purchase, though their possession would no doubt be adverse to the plaintiff, the present suit having been filed on 18 January 1922, it would be within 12 years from the dates of Exs. 2 and 3, and therefore, there would be no bar under Art. 144. The learned advocate for the appellant laid stress on one aspect with respect to the judgment of the lower appellate Court, and argued that there was no definite finding as to defendant 3 having been the de facto guardian. Though the lower appellate Court has not used this expression, it is clear on a perusal of its judgment, that its finding amounts to the existence of such relationship between the minor plaintiff and her elder brother, defendant 3. That finding cannot be attacked as one arrived at without any evidence or as an unwarranted inference from the facts proved in the case. I am not, therefore, prepared to disagree with the finding of the lower appellate Court. I hold that the plaintiff's suit is not barred by limitation and this second appeal is dismissed with costs. Leave to appeal is refused.