Venkatasubba Rao, J.
1. This is a state and unfounded claim. The following pedigree shows the relationship of the parties:
Papammal m. Chockappa Chetti. Thangammal.
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Venkatachalam Chetti Munuswami Chetti d. 1st Nov. 1910 |
(Plaintiff). m. Annapurni (1st defendant)
Govindaraju (d. about 1921). (d. 1892 or 1893)
2. The plaintiff states that, over twenty years ago, on the death of Velliammal, he became entitled to the suit house, 1992, Thambu Chetti Street, Madras, along with his brother Munuswami, the husband of the 1st defendant. It is not disputed that in the ordinary course the plaintiff and Munuswami would have taken Narayanaswami's property on his widow's death as his bandhus.
2. The house in question was purchased in 1892 by Narayanaswami. He had no issue and he and his wife brought up Annapurni, the 1st defendant, as their foster-daughter. The latter was a near relation of Velliammal, being her niece, and that was the reason why she was so brought up. The evidence shows that she was brought over from a village when she was five years old and was brought up with great affection by Narayanaswami and Velliammal. In course of time they married this girl to Munuswami, the plaintiff's brother. Narayanaswami died within a year or so of the purchase of the suit house and Velliammal succeeded to the same and was in enjoyment of it till her death in 1902 or 1903. Before her death, it would seem that she gave an oral direction that the 1st defendant was to take the house. She was to take this property and to pay some moneys to Velliammal's brothers. This was the desire expressed by Velliammal before her death. Mr. Narasimha Aiyar, the plaintiff's vakil, objects - and I think very rightly - to this evidence going in, if the object of adducing it, is to base a title upon an oral gift in favour of Annapurni, but the evidence has been given only to show the nature of the possession taken by Annapurni and her husband on the death of Velliammal. Then the question arises : In assertion of what right did they take possession of the house? As I have said, there is no doubt that, under the law, the persons who became entitled to the property were the plaintiff and Munuswami. What really happened was that, on Velliammal's death, Annapurni and her husband applied to the Collector of Madras for the issue of a certificate in their joint names, claiming that they inherited the property from the last registered proprietor, Velliammal. This statement is, of course, not true, for the heirs rightfully entitled to take the property were the plaintiff and Munuswami. But we are not now concerned with the truth or falsehood of this statement. In the application it was asserted, and wrongly, that Annapurni and Munuswami succeeded as Velliammal's daughter and son-in-law respectively. This is the first assertion of title and it clearly negatives the plaintiff's right to take the property as a reversionary heir of Narayanaswami. Thereupon, the Collector passed an order - and this again was wrong - recognising the right set up by the two claimants. In pursuance of this order, a Collector's Certificate was issued in the joint names of Annapurni and Munuswami. This happened in 1903. We thus find that they entered into possession under a claim of title adverse to the plaintiff. Let us then see what happened next. They executed two mortgages, one in 1903 and the other in 1904. The recitals in these mortgages are important, as they show that the mortgagor's title was traced to the oral gift alleged to have been made by Velliammal. Here again was an assertion of a hostile title which was inconsistent with the right of the plaintiff. Then we pass on to a transaction of 1910, which has a very important bearing on the question at issue. Munuswami executed a deed of release in favour of Annapurni, and in that he recites that the property always belonged to his wife but that his name was coupled with hers in the Collector's Certificate, as it was considered desirable to associate a male with Annapurni in the transaction. Then the deed goes on to recite that, by reason of this fact, he was executing the release deed in question, showing clearly that Annapurni alone was the owner. A few months after this, that is, on the 1st November, 1910, Munuswami died leaving an infant son, Govindaraju. The latter died in 1921, but, in the meantime, in 1920, Annapurni sold the property to the 2nd and 3rd defendants, who, in their turn, mortgaged it with defendants 4 and 5. The short question is, have the defendants acquired title by adverse possession?
3. Now, turning to the oral evidence, there can be no manner of doubt that the plaintiff never intended to claim the house and that he allowed his brother and Annapurni to take possession of it without protest or objection. It was true that when he occasionally came from his village and visited Madras, - he was received by his brother at the suit house, but this was done, not because that any one imagined that the plaintiff had a right, but, as between brothers, this was but natural. I do not believe that the plaintiff received a pie of income from this house; indeed, this is inconsistent with his case in the plaint. Anna-purni's evidence was frank and straightforward and I am disposed to regard her as a truthful witness. The plaintiff says that he and his brother owned some lands of trifling value in the mofussil and that they were members of a joint undivided Hindu family. This may be strictly correct, for I do not think that any partition has been proved; but it is impossible to believe, on the evidence, that Munuswami enjoyed these lands or derived any profit therefrom. The real truth is, that he regarded himself as a member of his wife's family and, as on account of that position he practically acquired a valuable house, he paid no regard to the mofussil lands, which he permitted his brother, the plaintiff, to enjoy exclusively. I accept Annapurni's evidence and hold that Munuswami got nothing and cared to get nothing from the mofussil lands, and, similarly, the plaintiff never participated in the profits of the Madras house.
4. On these facts, what is the true legal position? I quite recognise that in a case of this sort the test is not, has the plaintiff been out of possession for twelve years? It is for the defence to make out adverse possession and as between co-heirs the onus is heavy upon the party who asserts that he has been in exclusive possession. It is settled law, that in order that possession may be adverse, there must be, on the part of the co-owner setting up adverse possession, a disclaimer of the other's right, by an open and unequivocal assertion of a hostile title. Acts which would amount to dispossession, if done by strangers, would not, in the case of a co-sharer, be construed as such, for the reason, that each of the co-owners being entitled to the enjoyment of the property, it will be presumed, until the contrary is shown, that the acts were not unlawful acts but were done in the exercise of a lawful right. In the case of coheirs, the question of adverse possession may arise at least in three ways : first, possession of the entering heir may be from the outset adverse and on his own behalf; secondly, while the entering co-heir may originally take possession on behalf of all, he may subsequently change his intention and hold the property adversely and on his own behalf; and thirdly, there may be a prior joint occupation in fact, but one of the co-heirs may subsequently obtain sole possession under a hostile claim of title and rely upon that possession to support an exclusive right. The present case is of the first description. Immediately on the death of Velliammal, Munuswami took possession under an open claim of title hostile to the plaintiff. On the facts of the case I must find that the plaintiff was ousted and that he had notice of the same may be easily inferred. It is hardly necessary that notice of disclaimer should be express or explicit when the party ousted must be held to have had knowledge, the adverse claimant's possession having heen open, notorious and visibly hostile. It is impossible to hold that the plaintiff was not aware of the way in which Munuswami and Annapurni obtained possession and enjoyed the property. I am satisfied that he never thought of asserting this right and came forward with his dishonest claim, only after he found that the property passed to strangers. The plaintiff's suit fails and I dismiss it with costs of defendants 2 and 3.