1. The first defendant in O. S. No. 1513 of 1960 on the file of the Court of the VII Assistant Judge, City Civil Court, is the appellant. The relevant facts are these: The plaintiff's father, Krishnappa Naicker, was the elder son of one Govindappa Naicker the second son being Elumalai Naicker who was the father of defendants 1 to 5 and husband of the 6th defendant. The plaint A schedule property was acquired by Govindappa Naicker under Ex. A-1 on 6-6-1894. After his death, the plaint B schedule property was acquired by Krishnappa Naicker under Ex. A-2, dated 30-10-1916. Krishnappa Naicker died in 1922, leaving the plaintiff, his son. Elumalai Naicker died in 1949 leaving defendants 1 to 5 and the widow, the 6th defendant died and thereupon, defendants 1 to 5 were recorded as legal representatives and besides, the seventh defendants, the daughter was brought on record. The suit was laid for partition of the plaint A and B schedule properties and for allotment of the plaintiff's half share, with past and future mesne profits. The plaintiff alleged that the suit properties were the joint family properties and that he was entitled to a half share therein. The suit was resisted on the ground that the plaintiff's father was given his share and sent out of the family by Govindappa Naicker and that the plaintiff was not entitled to any share. It was also contended that, in any event, the defendants had acquired title by adverse possession for over the statutory period.
2. The trial court found that there was no joint family so as to entitle the plaintiff to claim a half share in the A schedule property which was purchased in the name of his grandfather Govindappa Naicker. Inasmuch as the plaint B schedule property was acquired in the name of the plaintiff's father, the trial court found that the plaintiff was entitled to that property alone and, accordingly, dismissed the suit as regards the plaint A schedule property and the movables in the B schedule in which the plaintiff claimed a share, and decreed the suit declaring the plaintiff's title to the B schedule property and for possession of the same. Aggrieved by this decree the first defendant has filed this appeal. Aggrieved by the dismissal of the suit in so far as the plaint A schedule property is concerned, the plaintiff has filed the memorandum of cross-objections.
3. The first question that arise for consideration is whether there was an earlier partition in the family as contended by the defendants. On this aspect, the written statement is very vague with regard to the alleged partition. In paragraph 5 of the written statement of the first defendant, it is alleged that Govindappa Naicker had given away the plaintiff's father's share, and sent him out of the family and that during the lifetime of Govindappa Naicker, he was living with his younger son, Elumalai. From this, we are asked to infer that a partition has been effected even during the lifetime of Govindappa Naicker. There is no evidence to show that there was any partition at all either during the lifetime of Govindappa Naicker or thereafter. D. W. 4, who was examined by the defendants to speak about the alleged partition did not claim to have any personal knowledge of the alleged partition. He was examined in the year 1964 when his age was 54 years. It is significant to note that Govindappa Naicker had died in 1914. If during his lifetime, a partition had been effected, it must have been prior to 1914. If the age of D. W. 4 was 54 years when he gave evidence in 1964, he must have been a boy of about 3 or 4 years at the time of the alleged partition, and it is hard to believe that he would have had any knowledge of the partition. If that evidence, goes, then there is no evidence on record from which the case of partition can be made out. The trial court was right in holding that there was no division as contended by the defendants.
4. If there had been no partition, then the joint family continued and, after the death of the father of the plaintiff, his uncle, Elumalai, became the manager of the joint family. To show that Elumalai dealt with the suit properties as his own adverse to the plaintiff, reliance is placed upon Ex. B-1, which is a usufructuary mortgage deed dated 3-7-1925 executed by Elumalai in favor of one Kuppuswami Chetti. In this mortgage deed it is not stated that the property was allotted to the share of the mortgagor under any partition. There is no evidence to show that the mortgage obtained possession and enjoyed the property as a usufructuary mortgagee. There is an endorsement of discharge found in that document. There is no evidence as to who made it. The defendants made no attempt to examine Kuppuswami Chetti, the mortgagee. There is also no evidence as to when the mortgage was discharged. In these circumstances, Ex. B-1 does not, in any way, show that Elumalai Naicker asserted title in himself adverse to the knowledge of the plaintiff. Reliance is placed upon Ex. B-2, dated 17-7-1925, which is a promissory note executed by Elumalai Naicker in favour of Kuppuswami Chetti. This promissory note refers to Ex. B-1 mortgage and recites that the further amount was borrowed for meeting the expenses connected with the repairs to the house. With regard to this promissory note none was examined. The promissory note does not, in any way, show that, to the knowledge of the plaintiff, Elumalai Naicker asserted titled in himself.
5. The counsel for the appellant placed considerable reliance upon the fact that during his lifetime, Elumalai Naicker carried out repairs to the property and himself paid taxes and that, at no time, the plaintiff paid the taxes. Nothing turns upon the fact that the taxes were exclusively paid by Elumalai for, being the uncle of the plaintiff, he was the manager of the joint family and only in that capacity, he was managing the property. It is contended that even though, the plaintiff was living in the same locality, he never claimed a share and took no interest in the affairs of the property. The plaintiff, no doubt, states that he claimed a share from Elumalai Naicker only in about 1948. But his evidence is that when he asked his uncle for a share his uncle told him that he would construct a house in the B schedule property and that he (the plaintiff) expected his uncle to do so. He, therefore, says that he did not issue a notice demanding a share. From this it does not mean that his right to a share in the property, was denied by Elumalai Naicker. Reliance is also placed on the evidence of P. W. 1, a relation of the plaintiff, who stated that the plaintiff made a demand upon Elumalai Naicker in 1945 and that Elumalai Naicker offered to pay a sum of Rs. 3000/- for the share of the plaintiff, but the plaintiff refused to receive the same. From this evidence, it does not follows that Elumalai Naicker denied the share of the plaintiff and that from the time of the demand, adverse possession started. From what P. W. 1 stated namely offer of Elumalai to pay Rs. 3000/- to the plaintiffs, it would follow that Elumalai had conceded the share of the plaintiff. There is nothing to show that Elumalai asserted title in himself to the knowledge of the plaintiff and that such assertion was made 12 years prior to suit.
6. The counsel for the appellant repeatedly contended that the plaintiff, who has given his age as 42 years in the plaint, made no demand for partition even though he was living in the same locality and that from that circumstance it is reasonable to infer ouster. We are unable to accept this argument. The decision in Annamalai Chetti v. Subramania Chetti, 56 MLJ 435 AIR 1929 PC 1, on which reliance was placed, does not advance the case of the appellant in any way. That was a case where claim was made to a property which a member of the family claimed to be his self acquisition and even after denial of a share, there was long interval of time in filing the suit. In those circumstances, it was pointed out that the delay in the institution of the suit long after the demand and refusal raised a presumption that the plaintiff's claim was state. In the instant case, there is no allegation in the written statement of the first defendant that at any time prior to 1959 the plaintiff made a demand for a share, that his share was denied and that, after denial the defendants were in possession for more than 12 years. Reliance is placed on Ex. B-92 dated 7-7-1950, a notice issued on behalf of the plaintiff by his counsel to the first defendant and his mother demanding a share. This notice was replied to under Ex. B-98, dated 18-7-1950, in which there was, no doubt, a denial of the plaintiff's claim for a share. But, the suit was filed within 12 years thereafter and the denial in this reply notice does not, in any way, advance the case of the defendants that they had perfected title by adverse possession.
7. The sum and substance of the argument of the appellant's counsel was that the plaintiff was not in enjoyment of the suit properties for more than 12 years and that the defendants alone have been in possession all along. From this circumstances, we are asked to infer ouster so as to disentitle the plaintiff to a share. We are unable to accept his argument. The mere fact that the plaintiff was not in joint possession of the property does not mean that he has been ousted. The burden of proof lies heavily upon the member of the family, who sets up title by adverse possession in himself to the joint family property to the exclusion of another member. He should prove affirmatively that, to the knowledge of the other member, he was asserting title in himself exclusively, that the other member was completely excluded from enjoying the property and that such adverse possession with open assertion of exclusive claim continued for the statutory period of 12 years so as to extinguish the right of the other member. The materials on record in this case are wholly insufficient to sustain the claim of the defendants to title by adverse possession.
8. The trial Court held that Elumalai Naicker was in possession of the A schedule property by spending his money and that there is no evidence to show that either the plaintiff or his father made any contribution for the construction of the house and that therefore, the plaintiff is not entitled to a share in the A schedule property. The trial Court further held that because the title deed for the B schedule property stands in the name of the plaintiff's father, that property belongs exclusively to the plaintiff. We are unable to accept any of these conclusions of the learned trial Judge. It is nobody's case that the plaint A Schedule property was the separate or self-acquired property of Elumalai Naicker. Though the sale deed in respect of the B Schedule property stands in the name of his father, the plaintiff conceded it to be joint family property and claimed only half a share therein. The lower court erred in declaring that property as belonging exclusively to the plaintiff. In these circumstances, we modify the decree of the lower court and there will be a preliminary decree for partition of both the A and B Schedule immovable properties and for allotment of one half share in favor of the plaintiff. The finding of the trial court with regard to the movables will stand. As regards mesne profits, it will be decided in a separate application under Order XX, R. 18, Civil Procedure Code. The appeal and the cross-objections are ordered accordingly, No order as to costs both here and in the lower court. The defendant will, however, pay to the Government the entire court-fee due on the plaint.
9. Order accordingly.