1. The facts found by the District Judge are as follows:
The plaint paramba was leased for 12 years by plaintiff's deceased Karanavan, Kunhi Pakki. In 1888 Kunhi Pakki gave the paramba as stridhanam to the 2nd defendant, his niece, and directed the tenant by Ex, III to pay the rent to her. From 1889 to 1903 the purapad was received by the 2nd defendant from Volandi Kannan and his assignee, the 1st defendant, both of whom executed marupat to 2nd defendant, the former in 1892 and the latter in 1893. Patta was transferred to the 2nd defendant's name in 1893.
2. The question for determination is whether the suit which is by the present Karanavan to recover the paramba on the strength of the lease of 1887 is barred by limitation as found by both the Courts below.
3. There is no registered document to evidence the gift to 2nd defendant as required by Section 123 of the Transfer of Property Act. The stridhanam grant is, therefore, invalid if it is to be considered as a gift recognising this; the respondent's Vakil urged that the grant was not a gift but merely an allotment for maintenance relying on the observation of the District Judge that the plaint paramba was given by 2nd defendant's Karanavan, Kunhi Pakki, to 2nd defendant for her maintenance. The District Judge, however, clearly did not mean to find that there was no gift but only an allotment for maintenance, for in the very next line he refers to the grant as a gift. Further it was the 2nd defendant's case from the beginning that there was a gift of the paramba to her. In her written statement she said the paramba was granted to her as stridhanam on the occasion of her marriage, that the property was assessed in her name, and that she had been holding it for more than 12 years on the strength of ownership right and adversely to the right which the plaintiff pretends to possess.' The 2nd defendant cannot now be allowed to change her case.
4. The District Judge held that the possession of the 2nd defendant for more than 12 years from 1888 was adverse to the tarwad and gave her a good answer to this suit for ejectment. It is contended for the appellant that there could be no adverse possession prior to 1899 when the term of the lease of 1887 expired. For the respondent it is argued that the lease of 1887 was determined in 1888 by virtue of Ex. III. In Ex. III, Kunhi Pakkistated that as he had granted the paramba as stridhanam to the 2nd defendant; the purapad should in future be paid to her.
5. There was, however, at the time of Ex, III no surrender by the tenant of his right in the paramba under his lease.
6. All he did was to agree to hold under the 2nd defendant who was said to become the owner by gift. As, however, the gift was invalid, the position is that the tenant under the lease of 1887 attorned in 1888 to the 2nd defendant who had no right to the property and paid rent to her thereafter. This would not make the possession of the 2nd defendant adverse to the tarwad until the term of the lease of 1887 expired in 1899, there having been no prior determination of the tenancy-vide Ittappan v. Manavikrama 21 M. 153 . It follows that the suit is not barred by limitation.
7. We, therefore, reverse the decree of the District Judge and remand the case for disposal according to law. Costs will abide.