K.S. Ramamurti, J.
1. This second appeal has been filed by the plaintiff (and continued after his death by his legal representatives) against the judgment and decree of the learned Subordinate Judge, Salem.
2. The plaintiff filed the suit to recover possession of the suit properties on the ground that he is the nearest reversioner of one Srinivasaraghavachari, that the latter died on 20th November, 1908, possessed of the suit properties, that thereafter his widow Janaki Ammal enjoyed the properties for sometime and that later on the defendants have been in possession of the properties claiming under certain alienations and claiming title through the alienees. The widow Janaki Ammal died in December, 1951, and the plaintiff filed the suit as the nearest reversioner of Srinivasaraghavachari, in the year 1959.
3. Both the Courts have concurrently found that suit properties belonged to Srinivasaragavachari and that the plaintiff is the nearest reversioner. In this view (after negativing the contentions of the defendants on other points), the trial Court decreed the plaintiff's suit. On appeal, though the appellate Court found that the plaintiff is the nearest reversioner pf Srinivasaraghavachari and that the suit properties belonged to him, it held that the plaintiff's suit was barred by limitation on the ground that there was no proof that at the moment of the death of Srinivasaraghavachari he was in possession of the suit properties.
4. It is not disputed before me that the plaintiff is the nearest reversioner and the suit properties belonged to Srinivasaraghavachari. A perusal of the judgment of the appellate Court shows that it has found that Srinivasaraghavachari was not in possession of the suit properties during his lifetime and that Article 141 of the Limitation Act of 1908 would not, therefore, apply so as to furnish a fresh starting point for limitation from the moment of the death of the limited owner. It is settled law that, if the last full owner had either lost possession or was not in actual possession of the property at the moment of his death, adverse possession would have commenced against him even during his lifetime that the existence of the limited owner, his widow, would not arrest the running of time, and that if the widow had not reduced the property to her possession within 12 years from 'he date when her husband was out of possession, the title to the property would be extinguished and the reversioner would not get an extended period of limitation. In the instant case the only satisfactory material which we have is Exhibit A-6, the partition deed of the year 1903, at which the suit properties were allotted to Srinivasaraghavachari. The question still remains whether Srinivasaraghavachari continued in possession of the properties thereafter and whether at the moment of his death he was in possession of those properties. At this distance of time, after an interval of fifty years and more during which period the defendants and their predecessors-in-title have been in possession of the properties, there is no satisfactory proof to show that the last full owner was in possession of the properties at the moment of his death. The suit itself has been filed after a long delay of seven years after the death of the widow. In view of the long lapse of time and in the absence of any other evidence, it will be open to the Court to presume in favour of the defendants that they and their predecessors-in-title continued in possession for several decades only because they had a legal title which necessarily meant that adverse possession has commenced even during the lifetime of Srinivasaraghavachari.
5. It is sufficient to refer to Broom's legal Maxims, 10th Edn., page 644, for the statement of the law that an obligation rests upon a Court of justice to presume all collateral circumstances for supporting long continued enjoyment by every legal means and by every reasonable presumption:
Likewise upon proof of title, everything which is collateral as to the title will be intended, without proof, for, although the law requires exactness in the derivation of a title, yet where that has been proved all collateral circumstances will be presumed in favour of the right; and, wherever the possession of a party is rightful, the general rule of presumption is applied to invest that possession with a legal title. No greater obligation, it has, indeed, been said lies upon a Court of justice than that of supporting long continued enjoyment by every legal means, and by every reasonable presumption; this doctrine of presumption, goes on the footing of validity, and upholds validity by supposing that everything was present which that validity required; omnia prasumuntur rite fuisse acta is the principle to be observed.
6. It is for this reason and to avoid hardship and injustice which would arise to litigants from disappearance of evidence of long interval of time, that the Limitation Act contains specific articles dealing with suits which could be brought by reversioners or persons who may be similarly placed for obtaining a mere declaration of title, though they may not be entitled to present possession.
7. Where possession dates back to a time beyond living memory, it will be almost impossible to prove by direct evidence the state of affairs which existed several decades ago. In such cases the doctrine of lost grant has been invoked by Courts to protect long continued enjoyment so that the party in possession may not suffer any hardship or injustice of not being able to support his title when the entire evidence has disappeared. This perspective of approach has been applied in the case of exclusive and sole possession of the common property by one co-owner. The law no doubt requires strict proof of ouster to extinguish the title of the other co-owners not in possession, but, if a co-owner who has been out of possession makes a claim after a long interval, the Courts have presumed, under the doctrine of lost grant, that the sole and exclusive possession which originated at a time beyond living memory was only as a result of ouster. The classical statement of law by Lord Mansfield in Fisher and Taylor v. Prosser (1774) 1 C. 217, has been followed in all the decisions.
8. It is sufficient to refer to the leading decision in Gangadhar v. Parashram I.L.R. (1905) 29 Bom. 300, and the cases which have followed. In Krishnayya v. Udayalakshmamma : (1953)2MLJ241 , Venkatarama Aiyar, J., (as he then was), applied the doctrine of lost grant and presumed everything to protect the possession of the party which dated back beyond living memory.
9. I may also refer to the observations of Subba Rao, C.J., in Peeran Singh v. Jamaluddin Sahib A.I.R. 1958 A.P. 48.
10. I accept the finding of the Court below that there was no proof that the last full owner was in possession of the properties at the moment of his death, but that he was out of possession. The plaintiff's suit therefore, has to be dismissed. In this view it is unnecessary to consider the doctrine of taking on of adverse possession of independant trespassers and as to whether the decision of this Court in Ramayya v. Kotamma I.L.R. (1922) Mad. 370 : (1922) 432 M.L.J. 319, is good law after the recent decision of the Supreme Court in Gurbinder Singh v. Lal Singh : 3SCR63 . The result is the second appeal fails and the plaintiff's suit is dismissed. The parties shall bear their own costs throughout. No leave.