1. This Second Appeal by the plaintiff is directed against the concurrent decisions of the two Courts below, dismissing a suit he brought under the provisions of Order 21, Rule 103, C. P. C. As the assignee decree-holder in O. S. 553 of 1101 on the file of the Changanacherry Munsiff's Court, the plaintiff brought the plaint schedule -property to sale and himself purchased it (22-12-1106). That decree was one obtained on foot of a simple mortgage defendant 1 executed in favour of the plaintiff's predecessor-in-interest on 28-2-1100 (Ex. E).
Afterwards on 12-4-1101 defendant 1 sold the property to defendant 2 (Ex. D), Defendants 1 and 2 were defendants 1 and 2 respectively in O. S. 553 of 1101 and they were the only defendants to that suit. Soon after the Court sale in his favour was confirmed and he obtained the sale certificate therefor, the plaintiff made an application to the Court to obtain delivery of the property. Coming to know of this application, defendant 5 to the present suit filed a petition raising objections to the delivery.
The ground of the objection was that the concerned property belonged to his sakha tarwad, that the tarwad was in possession of the same, that defendants 1 and 2 had no title to or possession of the same and that the plaintiff had therefore obtained no right to get the property delivered over to him. The execution Court upheld the objection by its order dated 29-9-1112 (Ex. G). The plaintiff took the matter in revision before the High Court of Travancore in C. R. P. No. 123 of 1113 and the High Court dismissed the revision holding that as the plaintiff had a remedy by way of an original suit, it was unnecessary for the High Court to consider whether the execution Court's order was right or not.
This was on 22-11-1117 and Ex. H is a copy of the order. Apparently the Civil Revision Petition and another proceeding before the High Court (A. S. No. 402 of 1115) between the same parties were heard and disposed of together. The judgment in that appeal (Ex. N) bears the same date as Ex. H, the order on the revision. Thereafter, on 21-11-1118 the plaintiff brought the present suit and he lost it both in the Court of the first instance, the Changanacherry Munsiff's Court and in the Court of first appeal, the District Court of Kottayam. Hence the Second Appeal.
2. The plaint schedule property is 4 acres its extent and it forms the eastern one-half of Sy. Plot 335/1 in Nedugunnam Pakuthy. Sy. Plot 335/1 is 8 acres in extent and it originally belonged to one Kmmappally tarwad. On 25-3-1092 the Kunnappally tarwad granted an otti to defendants 3 to 9 to the present suit with respect to 5 acres on the western side, but two junior members of the tarwad got the transaction declared void by the Changanacherry Munsiff's Court in O. S. 165 of 1094.
Exhibit J is the decree passed in that suit (25-12-1095). The decree was, however, not executed and in a partition arrangement in the Kunnappally tarwad, dated 22-2-1095 (Ex. F), the entire property, that is the whole of Sy. Plot 335/1 was given to defendant 9 to this suit on receipt of a consideration of Rs. 280 from her. The husband of defendant 9 was a kariasthan of the Kunnappally tarwad. There is no separate sale deed to evidence the transfer, but Ex. F has been taken by all concerned as sufficient to effect a valid conveyance.
Exhibit F refers both to the otti deed and the subsequent decree declaring it not binding on the tarwad, but proceeds to state that in lieu of the consideration of Rs. 280 received from defendant 9, the property is made over to her absolutely and she was free to get the mutation effected in her name. Defendants 3 to 8 to the present suit are the children of defendant 9. Three years after Ex. F, defendant 9, her second son, defendant 4 and defendants 5 to 8 who were then minors acting through their father, sold the entire 8 acres to defendant 1 for a consideration of Rs. 1,900.
According to the plaintiff defendant 1 obtained possession thereunder. That sale deed is Ex. A. Some eight months later on 28-10-1100, defendant 1 re-transferred the western one-half (4 acres) to his vendors (Ex. B). The hypothecation bond (Ex. E) in respect of the eastern one-half which was put in suit in O. S. 553 of 1101 was executed by defendant 1 on the same date as the said re-conveyance. It was on the Court sale pursuant to the decree passed on foot of that bond that the plaintiffs rested his title.
3. It is now convenient to refer to the circumstances which led up to the decision of the Travancore High Court in A. S. No. 402 of 1115. We have noticed that on 22-2-1096 the Kunnappally tarwad gave the entire Sy. Plot 335/1 to defendant 9. On 11-8-1098 defendants 4 and 9 to this suit executed a hypothecation bond in favour of one Thomman Mathai for an amount of Rs. 100 in respect of 5 out of the 8 acres comprised in the said Sy. Plot.
That bond was sued upon by the hypothecatee in O. S. 38 of 1102 on the file of the Changanacherry Munsiff's Court and he obtained a decree, Defendants 1, 2, 4 and 9 to the present suit were defendants 3, 4, 2 and 1 respectively in that suit and there were no other defendants there. The present plaintiff obtained an assignment of that decree and while he was executing it, defendants 5, 6 and 7 instituted a suit in O. S. 99 of 1104 before the Changanacherry Munsiff's Court to declare the hypothecation bond of 11-8-1098, the decree obtained on foot of it and the execution proceedings thereon as invalid and inoperative as against their sakha tarwad.
The decree-holder in O. S. 38 of 1101 was defendant 3 to that suit and the present plaintiff was defendant 4. Defendants 4 and 9 were respectively defendants 2 and 1. The Munsiff gave a decree to the plaintiffs in terms of their plaint and A. S. No. 402 of 1115 was the appeal the present plaintiff filed against the Munsiff's judgment and decree.
4. The ground on which defendant 5 raised objection to the delivery of the plaint schedule property to the plaintiff pursuant to the sale certificate granted to him by the Court in O. S. 553 of 1101 was that the property belonged to his sakha tarwad and that the alienation effected under Ex. A by some members alone was invalid and inoperative. Defendant 3 was the karanavan of the sakha tarwad and besides him two other sons of defendant 9, Bhaskara Pillai and Karunakaran Pillai, had also not joined in the execution of Ex. A.
The plaintiff's answer to this was that under Ex. F defendant 9 had obtained absolute rights to the entire 8 acres comprised in Sy. Plot 335/1 and that Ex. A gave defendant 1 the full right, title and interests of defendant 9 in the property and that after the re-conveyance of the western half, defendant 1 remained the full owner of the eastern half and that the hypothecation executed by him, the decree obtained on foot of it and the Court sale held pursuant thereto, were valid and binding on the property and that the full title thereto now had come to vest in him. In their suit O. S. 99 of 1104 defendants 5, 6 and 7 reiterated the case defendant 5 put forward in his objection petition in O S. 553 of 1101.
The objection petition in O. S. 553 of 1101 and O. S. 99 of 1104 were heard and disposed oi together by the Munsiff. His decision was one upholding the title of the sakha tarwad of defendants 3 to 9 to the property. The High Court declined to interfere with the order on the objection petition, but in disposing of A. S. No. 402 of 1115 held that the effect of the transactions which the Kunnappally tarwad had with the sakha tarwad of defendants 3 to 9 as per the otti deed and the conveyance under Ex. F was to make defendant 9 and her children co-owners of the property.
We will have to refer to that judgment in some detail later, but for the present it would suffice to state that by the decision in A. S. No. 402 of 1115, the present plaintiff succeeded in getting the lower Court's decision in O. S. 99 of 1104 modified by limiting the invalid and non-binding character of the impugned hypothecation, the decree thereon and the execution proceedings pursuant thereto, to the share of the three plaintiffs in that suit.
Notwithstanding that decision, when he brought the present suit (O. S. 648 of 1118) the plaintiff still kept on harping upon his old case that under Ex. F defendant 9 became the sole owner of the property and that as the result of the Court sale held pursuant to the decree obtained on the basis of the hypothecation bond' of which, among others, she was an executant, he had become the full and absolute owner of the property. Defendants 5 and 6, who alone among defendants 3 to 9 contested the suit, reiterated their old case that the property belonged to their sakha tarwad.
The Munsiff in disposing of the suit thought that the judgment and decree in O. S. 99 of 1104 were not appealed against and that as it was a decision inter partes, the parties were concluded by it. In fact a copy of the High Court's decree in A. S. No. 402 of 1115 was produced and marked in the case as Ex. V. It was overlooking that document that the Munsiff disposed of the suit following the earlier decision of his own Court. In the appeal before the District Court of Kottayam (A. S. 306 of 1951) the plaintiff produced the judgment of the High Court in A. S. No. 402 of 1115; the learned District Judge accepted that as additional evidence in the appeal and following it found that defendant 9 and her children were co-owners with respect to the plaint property.
It was accordingly held that Ex. A conveyed to the vendee thereunder the interests of the vendors, though not the entire property. All the same the plaintiff was non-suited on the ground that he had brought his suit more than 12 years after dispossession. The trial Court had gone to the extreme length of holding that Ex. A was not acted upon, that defendant 1 did not get possession thereunder and that that document, and the deed of re-conveyance of the western half, share (Ex. B), as also the hypothecation bond (Ex. E) executed by defendant 1 in favour of the plaintiff's predecessor-in-interest were mere sham or pocket instruments.
That finding was also interfered with by the lower appellate Court. According to that Court possession had passed to defendant 1 under Ex. A. He had surrendered the possession of the western half to his vendors under Ex. B and both the transactions were supported by consideration. On that basis the hypothecation, the decree obtained on foot of it and the Court sale pursuant thereto were also held to be not invalid.
The right, title and interests of the vendors under Ex. A were taken to have vested in the plaintiff. However, according to the learned Judge, defendant 2, the vendee from defendant 1, had lost possession not long after the sale in his favour. That sale, Ex. D, was, as noticed earlier, on 12-4-1101. The plaintiff's suit was brought only on 21-11-1118 and on the ground that he had not proved possession of defendant 2 within 12 years of the suit, the learned Judge dismissed the appeal. According to the learned Judge defendants 4 to 9 had regained possession by trespass effected some time after 1101 and before 1104.
5. The second appeal first came up before a single Judge and he referred it for decision by a Division Bench. The Division Bench in its turn referred the case to a Full Bench by its order dated 8-3-1956. That order reads as follows:--
'On the facts as found by the Court below the 1st defendant-owner, while in possession, executed a simple mortgage of the disputed property on 28-2-1100 and subsequently on 17-4-1101 sold the same to the 2nd defendant. The plaintiff who had obtained assignment of the decree for enforcement of the mortgage against the 1st defendant mortgagor and the 2nd defendant subsequent vendee became himself the purchaser at the Court-auction held in execution of the mortgage decree. The 5th defendant who thereafter successfully obstructed delivery in execution to the plaintiff was actually in possession of the property and this suit must be-deemed, if at all, to be one for ejectment of the 5th defendant in possession.
The Court below in the circumstances applied Article 142 of the Limitation Act and found that the plaintiff had not established the possession or the 2nd defendant at some time before 28-3-1108, the date of the obstruction petition and within 12 years of the suit date viz., 21-11-1118 and so it dismissed the suit. Learned counsel for the plaintiff appellant argues that Article 142 of the Limitation Act should not in any event have been applied and it was only Article 144 that was applicable and that even assuming Article 142 could apply, the period between the date of the obstruction petition and the date of the suit should be counted in his-favour. The questions involved are important and difficult and are likely to recur and we think it desirable therefore that a Full Bench disposes of this matter. We therefore refer the whole case to a Full Bench for disposal.'
When the second appeal came up before us, the main argument which Mr. K.K. Mathew, the learned counsel for the appellant, raised was that on the finding of the lower appellate Court that trespass by defendants 4 to 9 took place after the hypothecation deed executed by defendant 1 in favour of the plaintiff's predecessor-in-interest (the decree-holder in O. S. 553 of 1101), on 28--2-1101, possession of defendants 4 to 9, however long which might be adverse to the mortgagor and his vendee will not affect the plaintiff. Before we consider this aspect of the case it is necessary to dispose of one or two preliminary matters.
6. The lower appellate Court felt some doubts about the scope of the suit and whether there were sufficient allegations in the plaint to treat it as a title suit. At one stage in his arguments Mr. T.N. Subramonia Iyer, the learned counsel for the 5th defendant-respondent, urged that in a suit instituted under B. 103 of Order 21, C. P. C., the Court was only concerned with the question of possession on the date of the delivery or the obstruction as the case may be, and not with the question of title. The plaintiff originally paid only a Court-fee of Rs. 10 on his plaint. Subsequently he was, called upon to pay ad valorem Court-fee on the market value of the property. That order was complied with and on the memorandum of appeal to the lower appellate Court the Court-fee levied was also on the ad valorem basis.
The lower Court, however, mistook that the Court-fee paid in both the lower Courts was only a fixed fee of Rs. 10. In this Court the appellant reverted to the original Court-fee paid by him, but pursuant to our orders the deficit has since been made good. The plaint contains a prayer for recovery of possession and in our view the lower appellate Court's doubts about the frame or the scope of the suit are unfounded. Assuming that a suit under Rule 103 of Order 21 is not concerned with title, there is nothing which prevents a person bringing a suit under the Rule seeking to combine other reliefs in that suit and when ad valorem Court-fee has been paid for recovery of the concerned property and a specific prayer in that behalf is also included in the plaint, we cannot find any objection to possession being allowed to be recovered by the plaintiff in case he makes out a case for it on the merits.
Be that as it may, in a later stage in his argument the learned counsel or the 5th defendant-respondent conceded that an examination of the rival titles of the contending parties would really fall within the scope of a suit under Rule 103. Indeed this is a matter well covered by authorities and though before the arguments concluded counsel on either side were agreed about it, as the question frequently arises we consider it proper to refer to some decided cases on the question.
7. The decision which is frequently cited on the above question is a decision of the Madras High Court reported in Unni Moiden v. Pecker, AIR 1921 Mad 317: ILR 44 Mad 227 (A). Sir John Wallis, C. J. (Seshagiri Iyer, J., concurring), who gave the decision of the Division Bench pointed out that a suit under Rule 103 is not concerned only with the question of actual possession at the date of the summary order and that the suit is to establish the right which the plaintiff claims to the present possession of the property and that this right may be established without showing that the plaintiff was in actual possession at the date of the summary order against him.
There, obstruction was offered to delivery pursuant to a decree and an adverse order was passed against the obstructor. The District Munsiff dismissed his suit under Rule 103, but the Subordinate Judge allowed the appeal and decreed the suit, holding that the plaintiff, having, as he found, been in possession at the date of the order under Rule 98, could not be ousted in execution of a decree to which he was not a party, and that under the rule the Court was concerned with possession only. In setting aside the Subordinate Judge's decision the learned Chief Justice stated as follows:--
'The view that in a suit of this kind the Court has merely to ascertain whether the plaintiff was in possession at the date of the order against him under Rule 98 is based on a misconception of the scope of this rule. If he was, then the Court ought not to have passed the summary order against him under Rule 98 but ought to have dismissed the decree-holder's application against him under Rule 99. The effect of the order having been made under Rule 98 was to oblige him to sue under Rule 103 on pain of losing his right, whereas if the application had been dismissed under Rule 99 the decree-holder would have had to institute the suit under the like penalty.
The suit referred to in the rule, by whichever party instituted, is a suit to establish the right which he claims to the present possession of the property. In a suit by the decree-holder, if it were shown that the defendant was in possession at the date of the order under Rule 99, the decree-holder could only succeed by proving his title, because a person in actual possession has a possessory title against the world and can only be dispossessed by the true owner and those claiming under him. So, too, in the present suit, if it be found that the plaintiff was in possession at the date of the summary order against him under Rule 98, he is entitled to succeed by virtue of that possession unless the defendant (decree-holder) proves a subsisting title carrying with it the right to present possession.
The object of these provisions is to secure the speedy settlement of questions of title raised in execution, as explained by the Privy Council in Sardhari Lal v. Ambika Pershad, ILR 15 Cal 521 (B), with reference to the similar procedure prescribed with regard to claim petitions, and this is effected by requiring the unsuccessful party in the summary proceedings to file a suit within the year to establish his right on pain of losing it. In support of the Subordinate Judge's view reliance has been placed on the fact that the suit referred to in Rule 103 is a suit to establish the right which he claims to the present possession of the property, whereas the suit referred to in Rule 63 is a suit to establish the right which he claims to the property in dispute. This does not show that a suit under Rule 103 is concerned only with the question of actual possession at the date of the summary order.
The suit is to establish the right which the plaintiff claims to the present possession of the property, and this right may be established without showing that the plaintiff was in actual possession at the date of the summary order against him. Decree-holders and auction-purchasers against whom an order has been made under Rule 99 are never in possession at the date of the summary order, and yet they are allowed and even required to maintain the suit; and the scope of the suit must be the same whether the order against the unsuccessful party in the summary proceedings was made under Rules 98, 99 or 101. Nabadwinpendra Mookerji v. Madhu Sudan Mandal, 18 Cal WN 473: (AIR 1914 Cal 703) (C), the only authority we have been referred to, is in accordance with this view. The Subordinate Judge has not recorded any clear finding as to whether the plaintiff has established the right which he claims to the present possession, and the decree must be reversed and the appeal remanded to the District Judge to enable him to do so in the light of the above observations.''
This decision has since been followed in other jurisdictions; see Abdul Hakim v. Mangal Chand, AIR 1938 Pat 433 (D); Jitendra Nath v. Naridalal Dass, AIR 1947 Cal 434 (E); and Ramlaxmi v. Bank of Baroda Ltd., AIR 1953 Bom 50 (F).
8. Another preliminary point which we might with advantage refer to now is whether the suit under Rule 103 brought beyond one year of the Munsiff's order upholding the obstruction can be considered to be within time. The Munsiff passed the order on 29-9-1112 and the suit giving rise to this Second Appeal was brought only on 21-11-1118. We have noticed that the High Court order dismissing the Revision Petition filed against the Munsiff's order was made only on 22-11-1117. The suit was brought exactly within one year of that order. If that be taken to be the relevant date the suit is certainly within time.
There would however appear to be divergence of judicial opinion as to whether when the order on a revision application is one rejecting it, the date of the original order should not be taken to furnish the terminus a quo for the suit under Rule 103. The Madras High Court and the erstwhile Travancore High Court favour the view that the period of limitation should be calculated from the date of the High Court's order -- see Venkataswami v. Sara Bai, AIR 1943 Mad 633 (G) and Narayanan Pisharodi v. Pathoo, 1947 Trav LR 484 (H). The Calcutta High Court would however seem to take the opposite view -- see Meghmala Debi v. Saday Parhya, AIR 1938 Cal 577 (I). In Govinda Menon v. Krishna Pillai, (S) AIR 1955 Trav-C 51 (FB) (J), a similar though not, identical matter came up for consideration and the decision rendered accords with the Calcutta view.
We do not here think it necessary to resolve the conflict, and that for two reasons. In the first place the High Court's order in the revision virtually directed the present plaintiff to have his rights agitated in an original suit and whatever the rule as to the starting point of limitation for such a suit be, defendant 5 who was a respondent to that revision application cannot be heard to question the correctness of the direction. Further, the order passed by the Munsiff is not one strictly falling under Order 21, R, 99, inasmuch as defendant 5 here rushed to the Court with an application even before the Court passed an order for delivery.
Such 'anticipatory obstruction' is not countenanced by law -- see Ouseph George v. Varkey, 1952 Ker LT 660: (AIR 1953 Trav-C 123) (K). An obstruction of that type cannot limit the time for the aggrieved party to get redress against the order passed thereon to one year. The suit cannot therefore be taken to offend the one year's rule under Article 11-A of the Indian Limitation Act, 1908.
9. We now come to the question whether, the lower Court was right in holding that the suit brought beyond 12 years of the dispossession of defendant 2 from the property was barred by limitation. It was by way of attack on the lower appellate Court's view that Mr. Mathew contended that possession which had its origin after the hypothecation put in suit in O. S. 553 of 1101, cannot operate to the prejudice of the hypothecatee or one claiming under him.
As the order of reference to the Full Bench indicates, this argument was sought to be built on the finding that defendant 2 was dispossessed by defendants 4 to 9 some time after he purchased the property in Vrichigom 1101 (12-4-1101). The respondent's counsel strenuously attacked that finding and contended that the trial Court's view that Exs. A, B and E were never intended to be acted upon and that no title or possession passed to defendant 1 under Ex. A was the correct view. We have shown that the trial Court came to that conclusion under the misapprehension that the decision in O. S. 99 of 1104 was not appealed against.
In the face of the appellate decision (Ext. N) that view cannot be sustained. The High Court held that the title of the executants passed to the vendee and the parties are bound by that decision. In the light of that decision the lower appellate Court has considered the question of possession and held that pursuant to Ext. A, defendant 1 obtained possession of the entire 8 acres and that under Ext. D possession of the eastern half share, which alone on its date remained with defendant 1, passed to defendant 2. We are inclined to agree with, that finding.
10. By the time of the reconveyance of the western half share to the vendors some items of consideration mentioned in Ext. A had already been discharged by defendant 1 and the reconveyance Ext. B made provision for the balance. The very fact of a reconveyance of a portion of the property alone probabilises the case of transfer of possession under the original transfer. The hypothecation was brought into being on the same date as the date of the reconveyance. Evidently it was an adjustment of mutual rights.
Ext. A was executed by defendant 9 and the only other adult member of her branch who was then available, as also by the father acting as the guardian of the minor children. The whereabouts of defendant 3 were then unknown and there could not have been any impediment to put defendant 1 in possession, as both the parents of defendants 3 to 8 and defendant 4 the only adult male member available, were parties to Ext. A. For these and other circumstances referred to in detail by the lower appellate Court, defendant 1 must be held to have obtained possession as per Ext. A and retained it, beyond doubt, till the date of the reconveyance, on which date the hypothecation in favour of the plaintiff's predecessor-in-interest was also executed.
The transfer to defendant 2 was little over one year after that. We hear of any assertion of title and possession by defendants 5 to 7 or by the other children of defendant 9 only after the decree in O. S. 553 of 1101 (Ext. IV) and that in O. S. 38 of 1102 (Ext. II) were passed. In the circumstances, the lower Court's view that defendant 2 having been an absentee owner, defendants 4 to 9 took advantage of that position and trespassed upon the property some time after defendant 2 purchased it appears to us to be unassailable.
11. This takes us to the question of law raised by Mr. Mathew. In fairness to the respondent's learned counsel it must be stated that he conceded that in case we uphold the lower Court's findings as to transfer of possession as per Exts. A and B and the subsequent trespass by defendants 4 to 9, the point raised by Mr. Mathew has to be accepted. Ext. E came into existence on 28-2-1100. It is on the basis of that hypothecation bond the decree in O. S. 55S of 1101 was passed. The trespass as found by the lower appellate Court and confirmed by us was after Vrichigom 1101. Ext. E created a simple mortgage right in favour of the appellant's predecessor-in-interest and any adverse possession commencing thereafter cannot operate to prejudice either the simple mortgagee or the appellant.
As a simple mortgagee has no right to possession, the possession of the trespasser cannot be adverse to him. The position is well-settled by authorities -- see Vyapuri v. Sonamma Boi Ammani, ILR 39 Mad 811: (AIR 1916 Mad 998 (2) ) (FB) (L); Priya Sakha Devi v. Manbodh Bibi, ILR 44 Cal 425: (AIR 1918 Cal 933) (M); Sundaram Iyer v. Thiyagaraja Pillai, AIR 1923 Mad 160 (2) (N) and Aditya Kumar v. Dhirendra Nath, AIR 1950 Cal 92 (O). The lower Court's view that adverse possession even as against the plaintiff or his predecessor-in-interest commenced from the date of dispossession of defendant 2, the alienee from defendant 1, is clearly wrong.
12. Further, Article 142, Limitation Act can have no application to a suit by a Court auction-purchaser to obtain possession. The Article is in these terms :
'142. Forpossession of immovable property when the plaintiff, while in possession ofthe property, has been dispossessed or has discontinued the possession.
The date of thedispossession or discontinuance.
Column 1 of the Article speaks of a case where the plaintiff is dispossessed or discontinues to be in possession. The Court auction-purchaser cannot be expected to be in possession before his purchase and no question of Court auction-purchaser-plaintiff being dispossessed or his discontinuance in possession can possibly arise. There is a specific Article applicable to suits for recovery of possession by Court auction-purchasers and that is Article 137. That Article reads :
'137. Like suit(for possession) by a purchaser at a sale in execution of a decree, when the judgment-debtorwas out of possession at the date ot the sale.
When theJudg-ment-debtor is first entitled to possession.
It is however well-settled on authorities that this Article does not apply to a suit by a purchaser at a sale held in execution of a mortgage decree. The reason of the rule is that at a sale on a mortgage decree, the purchaser obtains not only the judgment debtor's interest, but also the interests of the mortgagee. The two cases last named Sundaram Iyer v. Thiyagaraja Pillai, (N) and Aditya Kumar v. Dhirendra Nath (O), are authorities for this position as well. The question, then is which Article of the Limitation Act applies to the case. Article 144 is as follows:
'144. Forpossession ot immovable property or any interest therein not hereby otherwisespecially provided for.
When the possession of thedefendant be-comes adverse to the plaintiff.
This is a residuary Article and under the third column thereof, limitation begins to run when the possession of the defendant became adverse to the plaintiff. That situation arose in this case from the date of the court-sale on 22-12-1106, and the suit having been brought within 12 years therefrom, it is not barred by limitation. The answer to the question raised by the order of reference is as above.
13. The next question is whether the plaintiff is entitled to recover the entire property. Earlier we have said that we will refer to the High Court's decision in A. S. No. 402 of 1115 in some detail later. The character of the interests which defendant 9 and her children had in the property has been the subject of decision there and the contention of the present appellant (who was the appellant in that appeal as well) that defendant 9 was the absolute owner of the property was elaborately considered by the learned Judges there and after referring to the relevant documents and the provisions of the Travancore Nair Act of 1088 they concluded the discussion thus :
'The provision extracted above (from the partition deed, Ext. F in this case) shows that what the parties intended was that they abandoned their rights under the decree Ext. IV (Ext. J) and gave the property to the original mortgagees under Ext. A (the otti deed) on receipt of some fresh consideration. This is the only reasonable construction which appears to us, can be drawn in the circumstances. In that view the property must be deemed to have vested in plaintiffs (defendants 5, 6 and 7 here), the 1st defendant (defendant 9) the 2nd defendant (defendant 4) and the 5th defendant (defendant 3).
The next question to be considered is whether the property on acquisition became the tarwad property of the acquirers or whether it vested in them in individual shares. Ext. A mortgage was in the year 1092 and Ext. V was subsequent. The acquisition under these deeds was after the passing of the Nair Act of 1088. Under Section 17 of the Nair Act of 1088, even if it be considered that the acquisition was makkathayam acquisition, the parties would be entitled to definite equal shares over which they would have a disposable interest. In that view, the property cannot be considered tarwad property of plaintiffs and the 1st defendant. They have definite interests in the property and the reliefs granted to them must be limited to their interests.'
It is on the above basis that the lower appellate Court modified the trial Court's decree, by limiting the relief to the plaintiffs in that case to the extent of their shares. The subject matter of that litigation was 5 out of the 8 acres comprised in Sy. plot 335/1. Ext.A itself showed that the consideration for the otti deed of 1095 and that for the subsequent conveyance under Ext. F proceeded from the husband of defendant 9, who was the father of defendants 3 to 8.
The acquisition had therefore to be taken to be a makkathayam gift, the donees thereunder taking the property as tenants-in-common. In this case, before the lower appellate Court, the contesting respondent's counsel con-ceded that defendant 9 and her children may be taken to be tenants-in-common in respect of the plaint schedule property. It is only on this basis that any relief can be granted here to the plaintiff.
14. We have therefore now to deal with the question of the extent of the property the plaintiff can be allowed to recover. The evidence in this case is to the effect that defendant 9 had 8 children. Defendant 5 as D. W. 5 spoke to that fact and the plaintiff when asked about it stated that he had no information as to how many children defendant 9 had. We have therefore to conclude that there were 9 corowners for the property. Of these defendants 4 and 9 had joined the execution of Ext. A and defendants 5 to 8, who were then minors, have been represented in that document by their father as guaraian. Since the minors had not come forward to impugn the transaction the lower appellate Court took the view that the shares of these six persons must be deemed to have passed to the vendee, defendant 1.
Strangely enough even after the decision an Ext. N, in his plaint the plaintiff stuck to his old case that defendant 9 became the sole owner of the property as per Ext. F and that the transfer under Ext. A conveyed to defendant 1 the full right, title and interests in the property. We have already stated that it is too late in the day to countenance that case. In his plaint, in the replication statement filed by him, as also in his evidence at the trial, the plaintiff maintained that under Ext. F defendant 9 became the sole owner of the property.
He did not seek to recover here the shares of any of her children because according to him they had no share at all. When the respondent's counsel therefore contended that the plaintiff can be allowed to recover only one-ninth share of the property, Mr. Mathew strenuously argued that the plaint, the replication statement and the evidence of the plaintiff should be understood as meaning merely that the property stood in the name of defendant 9 and that as the acquisition was with her husband's funds, the law implied that the children had also shares and the plaintiff should therefore be allowed to recover at least the six shares which according to the lower appellate Court had passed to defendant 1 as per Ext. A. We cannot help thinking this as anything but an ingenious argument to wriggle out of the quandry which the plaintiff had created for himself. The obstinacy with which he persisted in his old stand now proves to be to his detriment and the desperate attempt therefore is to seek to make the best of a bad job. That what the plaintiff meant by his plaint, replication statement etc., was that tne property stood in the name of defendant 9 for and on behalf of, herself and her children was certainly not the case put forward before the trial Court or before the lower appellate Court. The following extract from the trial Court's judgment will show what the plaintiffs case was before that Court:
'It is the case of the plaintiff that under the transfer made in favour of the 9th defendant as per Ext. F the 9th defendant alone became entitled to the properly conveyed under it and she was competent to execute Ext. A dated 18-6-1099 sale for the entire 8 acres of property in favour of the 1st defendant and defendants 3 to 8 children of 9th defendant had no right over the property and that they are not competent to question the validity of Ext. A or the subsequent transactions the 1st defendant entered into in respect of the property based on Ext. A.
The defence who contend that the plaint allegation that the property conveyed under Ext. F vested in the 9th defendant alone and that she was competent to deal with the property is false and that it is false can be seen from Ext. A itself relied on by the plaintiff. Ext. A is seen executed by the 9th defendant and one of her sons the 4th defendant and also her husband officiating as guardian of their minor children.'
The stand taken up before the lower appellate Court can be seen from the opening words of paragraph 4 of that Court's judgment, reading:
'On these premises, the learned counsel for the plaintiff raised two alternative arguments, firstly that the property belonged to the 9th defendant exclusively and not to her branch, and secondly, in any view, it belonged to her and her children as tenants-in-common.'
By no stretch of imagination can we therefore hold that what the plaintiff meant by his plaint, his replication statement and his evidence was that the plaint property was makkathayam property standing in the name of the mother, defendant 9, to which herself and her children were equally entitled. The plaintiff asked only for the property of defendant 9 and it is seen defendant 9 has only a one-ninth share in it.
This suit is no doubt not a suit for partition. All the same as full ad valorem court-fee has been paid in all the three Courts, we cannot find any impediment in our way to pass here a preliminary decree for partition of the plaintiff's one-ninth share and to direct the trial Court to pass a final decree in that behalf after the necessary formalities. That Court will also deal with the plaintiff's claim for mesne profits.
15. In modification of the decrees of the two lower Courts, we pass a decree as above. In the circumstances of the case costs incurred up till now in all the Courts will be borne by the respective parties. Costs in the final decree proceedings will be provided for by that decree. Order accordingly.