ALAGIRI CHETTY Vs. MUTHUSWAMI CHETTY

JUDGEMENT

(1.) The suit out of which this appeal arises was brought for partition and separate possession of the appellant's share of a certain house in Salem Town of which this appeal is concerned only with the eastern portion measuring 10 ankanams which is hereinafter referred to as the house. The facts so far as they are material for the determination of this appeal are briefly these : The house belonged to one Servaraya Chetti who died some time before 1891 leaving him surviving his widow, Minakshi who died in that year. At the time of her death the nearest reversionary heir was one Alagiri Chetti who was the elder brother of Servaraya Chetti and the paternal grand-father of the present appellants. Alagiri Chetti died in 1900 leaving behind five sons of whom respondent 1 herein who has throughout been in occupation of the house is one.

(2.) The appellant's ease was that Minakshi left a registered will by which she devised the house to the five sons of Alagiri Chetti in equal shares of which the appellants claim two shares in the right of their deceased fathers Annaswami and Kanda-swami. As already stated, respondent 1 is one of the sons of Alagiri Chetti and respondents 2 to 8 are his descendants. The case of these respondents was that Servaraya Chetti having no issue brought up respondent 1's wife as his foster-daughter and made an oral gift of the house to her on the occasion of her marriage and that since then respondent 1 and his wife and their descendants have been in continuous possession and enjoyment of the house. Both the Courts below have found that the gift alleged by the respondents was not proved and that the will set up by the appellants was inoperative as Minakshi had no power under the Hindu law to effect any testamentary disposition of her husband's property. These findings are clearly right; and are not attacked in this appeal. But the trial Court further held that, notwithstanding the failure of their title under the will, the appellants, as representing two of the sons of Alagiri Chetty who succeeded to the house on the death of Minakshi, were entitled to two out of the five shares in which the house devolved on his sons at his death and that the long possession and enjoyment pleaded by respondent 1 and his descendants was of no avail to them, as it could not have been adverse to the appellants, respondent 1 having been a co-owner of the house with the other sons of Alagiri Chetti after the latter's death.

(3.) The learned Subordinate Judge disagreed with this view. He found that respondents 1 to 8 had been in possession of the house for over 40 years and that such possession and enjoyment existed even during the lifetime of Alagiri Chetti when respondent 1 had no title whatever to the property. He held that the fact that respondent 1 became a co-owner along with his brothers after Alagiri's death could not change the nature of his possession and that therefore the respondents had acquired title to the house by adverse possession and the appellants suit was barred by limitation.