(1) The property in dispute was purchased in 1901 in the name of one Senamuthan. It is not in dispute it was joint family property, Senamuthan had three other brothers and the defendant is the son of one such brothers. Senamuthan died in 1952. His widow, Nagal, sold the property to her son-in-law, one Udayan, who in his turn sold the property to the plaintiff under Ex. A. 1 dated 31-8-1953. Basing his claim on this title deed the plaintiff sought for a declaration and possession of the property form the defendant. It was alleged by the plaintiff that in 1920 there had been a partition amount the members of the family as a result of which this time of property had been allotted to Senamuthan. The defendant contended, on the other hand, that though there was a division in which the properties of the joint family were divided, this particular item of property alone had been left to be enjoyed in common. The further contention on behalf of the defendant was that Senamuthan left a grandson, one Palani, who would be entitled to a half share in the property along with Senamuthan's widow, Nagal, so that in any event, the title upon which the plaintiff relied was not valid except to the extent of half the property.
(2) The trial court declined to accept the theory of the partition in 1920. It equally refused to believed that this property was kept intact as was the case put forward by the defendant. The question whether Palani was the grandson of Senamuthan and was entitled to any share in the properties was found in favour of the contentions of the defendant. The trial court, however, dismissed the suit. On appeal, this decision was reversed. In effect the lower appellate court found that the defendant's version of this property having been kept out of the partition was not established and that on the other hand, the evidence was fully in conformity with the contention of the plaintiff that there was a valid partition covering this item of property also in 1920. The appellate court was thus of the view that the four brothers had become divided and Senamuthan as divided member was in possession of this suit properties, the properties having been allotted to him at that partition. Upon the question whether the grandson of Senamuthan, Palani, was entitled and, whether by reason of his absence as a party to the suit the plaintiff could not get a declaration and possession except as regards the share of Nagal in the properties, the lower appellate court found in favour of the plaintiff. That is to say the suit was decreed as prayed for in respect of the entirety of the property. The defendant appeals.
(3) Mr. K. Chandramouli, the learned counsel for the appellant, argues that the appellate court has given conflicting decisions on the question of partition, and that there is in effect no decision by the lower appellate court on this important aspect of the case of the either party. Though a finding with regard to partition would undoubtedly be a question of fact binding upon this court in second appeal, the learned counsel seeks to show on a reading of the judgment of the lower appellate court that the lower appellate court has not given any specific finding as would constitute a finding binding in its nature. Issues 3 and 4 framed by the trial court were: "Whether the arrangement and muri referred to in para 9 of the written statement are true and valid?" and "Whether the partition pleaded is true?" On both of these issues the trial court found against the contention of either party. In para 5 of the appellate judgment it is observed. "The finding of the learned Munsif on issues 3 and 4 stands unimpeached and is final". This sentence would of course appear to suggest that the appellate court concurred in the view taken by the trial court that the partition of the year 1920 set up by the plaintiff was not established as also the special arrangement pleaded by the defendant that this item of property was left undivided was equally found to be to established. But the lower appellate court did not stop there. It proceeded to discuss the entire evidence, particularly the evidence relating to the partition among the four brothers. It also dealt with the alleged arrangement by the defendant and found it to be untrue.
In the case of the 1920 partition the lower appellate court took the view that the property had all along been in the possession of Senamuthan and since it has reached the position that there had been a partition, the exclusive possession of this item by Senamuthan must be related to a valid allotment made at that partition. It was accordingly concluded that Senamuthan was a divided member and he held the suit properly in his own right as one that fell to his share. Clearly then the lower appellate court found that the partition set up by the plaintiff court found that the partition set up by the plaintiff was true. The observation that the finding of issues 3 and 4 was accepted by the lower appellate court is certainly incorrect for we find a detailed discussion explaining exactly what parts of the finding of the trial court were accepted by the appellate court. It follows that he argument that there is no finding, which justifies the further canvassing of this question in second appeal, cannot be accepted.
(4) The next question is whether the plaintiff would be entitled tot a decree only in a half share in the property on the finding that Nagal, the widow, of Senamuthan, was not exclusively entitled to the property but was only jointly entitled long with her grandson, Palani. It has been found that Palani is entitled to a share. Undoubtedly, Nagal and Palani are co-owners and stand in that relation to each other in relation to this property. What the defendant contends is that Nagal being entitled only to a moiety of the property, she could pass a valid title in respect of that moiety only and that therefore the plaintiff cannot obtain a declaration and possession of more than that moiety. The possession of the defendant is undoubtedly that of a trespasser and nothing more. It is open to Nagal as one of the co-owners to be in possession of the entirety of the property belonging to the co-owners. If she purported to alienate the property in favour of third party, it is for the other co-owner to object to such a course and take such action as is open to him. I can hardly see how a trespasser, which is all the status that the defendant has, can question the right of one of the co-owners to deal with the property in its entirety. As against a trespasser any one of the co-owners may claim to be entitled to the entirety of the property. Mr. Chandramouli Narain v. Said Ahmed Khan, 1946-2 Mad LJ 98, (AIR 1946 PC 59). The following head note is sufficient:
"The plaintiff suing in ejectment could only succeed on the strength of his own tittle. There is no obligation upon the defendant to plead possible defects in the plaintiff's title which might manifest themselves when the title is disclosed. It is sufficient that in the written statement the defendant denies the plaintiff's title and under this plea he could avail himself of any defect which such title discloses."
Now, according to learned counsel, here is a defect in Nagal's title, that is to say, that she is only entitled to a half share in the property, and if the representative in interest of Nagal, that is the plaintiff, comes to court he cannot urge a claim higher than to a moiety of the property. I am really unable to understand how the principle of this decision can be made use of in this case. Far form there being any defect in the title of Nagal, Nagal is certainly entitled to be in possession of the entirety of the property. Her possession would naturally be on behalf of the co-owners. It is not open to the defendant to say that as the plaintiff claims through only one co-owner, his claim should be restricted only to the fractional interest of the co-owner. Mr. T. R. Srinivasan, learned counsel for the respondent, points out to the decision in Palani Ammal v. Sethurama Aiyangar 1949-1 Mad LJ 290: (AIR 1949 Mad 814) that any one of co-owners can maintain an action in ejectment against a trespasser. That is precisely the position which obtains here. It has also to be noticed that in view of the specific finding that, Palani is a co-owner, the declaration which the plaintiff is entitled to is only that Nagal's interest has been conveyed to the plaintiff. It is however open to Nagal's one of the co-owners entitled to be in possession of the entire property, to pass on such right to possession to any other party.
(5) That being so, both the declaration and the decree for possession were rightly granted. The second appeal fails and is dismissed with costs. No leave.
(6) Appeal dismissed.