1. This was a suit by the plaintiff for a share in certain properties (now reduced to a family house) as a coparcener. The plaintiff, the 1st defendant's father and one Kothandapani Chetti were sons of one Gopal Chetty. The youngest son became a convert to Mahomedanism, the second son predeceased his father and the eldest son, the plaintiff, was absent for many years, some 18, in the Straits Settlements. During his absence the youngest brother, now a Mahomedan, conveyed his share in the property in question to a stranger, the 2nd defendant, and in 1902 the mother of the 1st defendant effected a mortgage on the property and in 1915 the 1st defendant conveyed the property to the 3rd defendant with a covenant that he should pay off the mortgage. The question therefore is as to the plaintiff's right in the house.
2. The District Munsif held that the plaintiff was entitled to one-third share of the house and one-third in the land. As to the latter there is no appeal and we are not concerned with that. On appeal to the Lower Appellate Court the latter held that as, the house had all along been in the possession of first the mortgagee and afterwards the 3rd defendant who paid off the mortgage the rights of the plaintiff had become barred by the exclusive and adverse possession on the part of the mortgagee and the 3rd defendant who paid him off.
3. The question is, can this finding of the learned District Judge be supported? It is obvious that the 1st defendant's possession was the possession as a coparcener on behalf of the plaintiff also, and it is to my mind equally obvious that While the plaintiff was in either actual or constructive possession of his undivided share in the family house 1st defendant would have had no right whatever to effect an alienation of anything more than his own undivided share. Why should the absence of the plaintiff for a number of years make any difference unless we can assume from the fact of that absence that he has been excluded from his share or he has voluntarily abandoned it? It seems to me that it would be an unjust thing to hold that although the alienee of the 1st defendant would ordinarily acquire nothing more than the latter's share on a conveyance is in a better position owing to the absence of the plaintiff. Therefore it seems to me to turn as to this point exclusively on the consequences of the plaintiff's absence and it must be proved that he has either been excluded to his knowledge or voluntarily abandoned his rights. The findings of the District Munsif show to my mind the direct contrary of any such exclusion or abandonment. There is no finding on this point by the learned District Judge because the only question argued before him was this question of adverse possession. The findings of the District Munsif are that after the departure of the plaintiff to foreign parts his wife continued to reside in the family house, that in the sale deed of 1915 by the 1st defendant to the 3rd, provision is made for the continued residence of the plaintiff's wife in the house. The 3rd defendant admits that she spent Rs. 100 for the marriage of the daughter of the plaintiff. It is said that the presence of the plaintiff's wife in the house is due to a will by Gopal Chetty in favour of the 1st defendant and the wife of the plaintiff. The will which was of course inoperative in law on the coparcenary property is dated 1898. Gopal Chetty is said in the plaint to have died about 5 years before the suit which would be 1913. It seems a fair inference from the facts that between the early part of 1898 when probably the plaintiff left for the Straits Settlements and the death of Gopal Chetty which is the date from which the will if operative would have taken effect, the plaintiff's wife was living in the house as the wife of a coparcener entitled to right of residence. If that is so it can make no difference that she derived another title from an inoperative will said to have taken effect some time after that date. If her possession can be traced to a lawful source as I think it can, there is no reason to suppose that it has been displaced until proof is forthcoming. I do not think that the fact that it Has been held that Article 144 applied to suits against the alienee of a coparcener and not Article 127 can make any difference, as obviously in considering cases of adverse possession one is clearly entitled to consider the origin and quality of the possession, and as I have already said above in this particular case unless exclusion or abandonment is proved the question of adverse possession does not arise. A point which had come before me on a previous occasion has been agitated in this case, namely, as to whether adverse possession can be acquired against a coparcener without his being put on notice either actual or constructive that adverse possession is running against him. There are cases on either side of the line and the matter does not appear to have been authoritatively disposed of at least as far as this Court is concerned. 1 had occasion sitting with Mr. Justice Ayling in S. A. No. 2019 of 1920 to examine the cases on this question at some length ana my opinion then was that such adverse possession could not be acquired without notice to or knowledge of the coparcener against whom it was so acquired. The same opinion was expressed by Ayling and Tyabji, JJ., in Muthukrishna Aiyangar v. Sankaranarayana Aiyar : (1914)27MLJ600 . In Venkatarama Aiyar v. Subramania Sastri (1923) 20 LW 122 Oldfield and Ramesam, JJ., held that in order to establish a title by prescription in a co-owner there should be evidence of exclusion of the other co-owners from possession or assertion of an exclusive title and also that a transferee from a co-owner with actual or constructive notice of the fact that his alienor was only a co-sharer is also bound to prove exclusion by him of the other co-sharers if he wants to establish a title by prescription. Where the transferee has no such notice he will be on the same footing as any ordinary transferee with an independent but an invalid title or with none. On the other hand, there are two cases in Sheik Abdul Gafur v. Ashamath Bibi (1919) 11 LW 31. and in Munisami Reddi v. Govindasami Naicken (1921) 42 MLJ 364. which seem to point the other way. Both these decisions were examined by me in the Second Appeal No. 2019 of 1920, referred to above, and I there stated my reasons for not adopting them. Although the law thus stands in some uncertainty with regard to this question of notice, as to which I must say I remain unconverted, I think the present second appeal can be decided on the fact of want of any evidence of exclusion or abandonment. In fact in my opinion, the evidence points all the other way., Now; the question is whether the plaintiff is to get a third half of the house.
4. As regards the second appeal it seems to me that there are only two people concerned, namely, the plaintiff and the 1st defendant's father and his representatives or transferees. There is no question as already sated of Kothandapani's share in the house so that it is clear that by the relinquishment so to speak of that share 1st defendant and his representatives cannot be enriched at the expense of the plaintiff. I therefore think that the plaintiff ought to get half the house. As to the money obtained from the mortgage of the house Ex. VI the mortgage was executed by the widow of the 1st defendant's father as guardian of the 1st defendant. It is not clear how she can either in fact or in law represent the plaintiff whom I have already held not to have been excluded so as to bind him. The effect of the alienation Ex. VI was in fact to do nothing more than to bind 1st defendant's share. It therefore appears to me that the plaintiff is not required to shoulder any part of the mortgage debt.
5. In the result the decree of the learned District Judge must be reversed and there must be a decree for the plaintiff in the sense indicated above with costs here and in the Lower Appellate Court.