Alfred Henry Lionel Leach, C.J.
1. The appellant is the trustee of a public charity known as the Chinna Ramanuja Kootam Chathram and sued to recover possession of a house which had been dedicated to the trust. The defence was that the trust had lost, title to it by reason of adverse possession and in second appeal this plea was accepted.
2. In 1897 one Malayaperumalswami Chettiar became the trustee and until 1903 performed the duties of his office. From then onwards Malayaperumalswami, who was joint with his four sons, treated the property as belonging to the family. On the 14th March, 1917, he and three of his sons, the fourth being dead, mortgaged the property as the owners thereof. Subsequently two of the sons purported to surrender their interests in the property to their father and their brother Sitharama. On the 22nd December, 1920, Malayaperumalswami and Sitharama raised a further loan on the security of the property. On the 9th March, 1928, the property was attached by the first defendant, who had obtained a decree against Malayaperumalswami and Sitharama, and it was sold to the decree-holder in the sale which followed.
3. On the 30th July, 1931, in O.S. No. 2 of 1930 of the Court of Small Causes, Kumbakonam, a scheme was framed for the management of the trust and the plaintiff was appointed the trustee. On the 4th January, 1933, he filed in the Court of the Subordinate Judge of Kumbakonam the present suit to recover the property; the first defendant alleged that Malayaperumalswami had been in possession adversely to the trust from 1903 onwards and as the suit had been brought more than twelve years from the commencement of the adverse possession it was out of time. The Subordinate Judge rejected the plea of adverse possession and decreed the suit. On appeal his decision was upheld by the District Judge of West Tanjore. The first defendant then appealed to this Court from the decree of the District Court in so far as it concerned the half share claimed by Sitharama. The appeal was heard by Patanjali Sastri, J., who held that inasmuch as Sitharama had been in possession of a half share interest in the property for more than twelve years he had obtained a title to that extent. The learned Judge here relied OH the decision of the Privy Council in Iswari Bhubaneswari Thakumni v. Brojo Nath Dey (1937) 2 M.L.J. 527 : L.R. 64 IndAp 203 : I.L.R. (1937) 2 Cal. 447 (P.C.). This appeal is from the judgment of Patanjali Sastri, J., under Clause 15 of the Letters Patent.
4. In Iswari Bhubaneswari Thakurani v. Brojo Nath Dey (1937) 2 M.L.J. 527 : 1937 L.R. 64 IndAp 203 : I.L.R. (1937) 2 Cal. 447 (P.C.) two brothers R. and B, who constituted a joint family governed by the Dayabagha law, by a deed executed in 1888, dedicated certain immovable properties to a domestic deity and conveyed the properties to themselves as she baits. The deed provided that the right of she baiti should go to their male heirs by primogeniture. In 1896, R and B conveyed additional properties to themselves as she baits. In 1901 R died, leaving two sons P and S. At the time of his father's death S was a minor. In 1904 in a suit instituted by S suing through his mother as his next friend, a preliminary decree was passed by consent of the parties setting aside the deeds of 1888 and 1896. The defendants were B, P and their sons. The decree provided that a moiety of the property should go to B and the other moiety to P and S. A final decree was passed in 1906 and in the partition of the properties, the thakurbarhi and a house built for the she baits were allotted to P and S. In 1918, S who was then a major brought a suit for the administration of his father's estate and for a division between him and his brother P. This resulted in a preliminary decree for the partition of the estate in equal shares between P and S, subject to an allowance for the maintenance of the deity. In 1924, P died, leaving two sons, M and J. In 1928, M as the she bait instituted the suit which gave rise to the appeal to the Privy Council for a declaration that the deity was entitled to the properties conveyed to R and B as she baits by the deeds of 1888 and 1896. The Judicial Committee held that the thakurbarhi and the house built for the she baits had been dedicated to the deity, but that S had acquired title to a half of these properties by adverse possession. From 1904 onwards for at least 12 years S had openly and without any fraudulent collusion been in joint possession of the thakurbarhi and the house on the basis that the consent order of 1904 was effective and that the property was not subject to dedication. As S was not affected by any fiduciary disability attaching to P there was nothing to prevent his possession of his half being adverse to the appellant idol.
5. Mr. Sesha Aiyarigar on behalf of the appellant has contended that this decision has no application here because in that case the family was governed by the Dayabhaga law, whereas here the family is governed by the Mitakshara law. Being governed by the Dayabhaga law P and S acquired equal shares in the properties on the death of their father R. Under the Mitakshara law, while the family remains joint, there is community of interest and unity of possession. There is unity of possession under the Dayabghaa law but not community of interest and this, it is said, makes all the difference.
6. In agreement with Patanjali Sastri, J., we fail to see any real reason for drawing a distinction. A member of a joint family governed by the Mitakshara law has the right of alienating his interest in the family estate. It is true that the alienee cannot be put into possession until there is a partition, but he has the right of forcing a partition. The interest of a member of a joint family governed by the Mitakshara law is referred to in the authorities as his share. (See Ramachandram Pillai v. Kalimuthu Chettiar : (1911)21MLJ246 and Dharmarao v. Bapanayya : (1941)1MLJ15 )
7. As we have already pointed out, as long ago as 1903, Malayaperumalswami treated the property in suit as the property of the family and his sons accepted it as such. The fact that Sitharama joined in the mortgages of the 14th March, ,1917, and the 2nd December, 1920, shows that he openly claimed an interest in the house. It had belonged to his grandfather Vasudeva, who died in 1875. Vasudeva was survived by his widow Abhayambal, who adopted Malayaperumalswami after her husband's death. The adoption was made on the condition that a half of the estate of Vasudeva should go to Malayaperumalswami and the other half to the widow for life and then to the Chinna Ramanuja Kootam Chathram. In 1887, Malayaperumalswami brought a suit against his adoptive mother for the recovery of the whole of the estate and this was compromised. The arrangement then made was that the properties should go to Malayaperumalswami except the house now in suit which was to be dedicated to the charity. Subsequently he repudiated that arrangement and he and his sons treated the house as belonging to the joint family. Sitharama was in joint possession of it with his father for more than 12 years and as his claim was adverse to the trust we consider that he acquired an interest to the extent of one half.
8. The appeal will be dismissed with costs.