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Alagiri Chetty and anr. Vs. Muthuswami Chetty and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1940Mad102
AppellantAlagiri Chetty and anr.
RespondentMuthuswami Chetty and ors.
Cases ReferredVarada Pillai v. Jeevarathnammal A.I.R.
Excerpt:
.....appellants, respondent 1 having been a co-owner of the house with the other sons of alagiri chetti after the latter's death. but the proper article applicable is clearly article 141 and not article 144, and therefore it seems to me, no question of adverse possession really arises. sitarama rao then referred me to the, well known case in lyell v. the person in possession there had been in enjoyment of the whole property like respondent 1 here......the statute can operate. if respondent 1 is to be treated as, in my view, he should be, as having held possession throughout, the decision can obviously have no application here. on the other hand, the quotation from the judgment of baron parke in smith v. lloyd (1853) 9 ex. 562 tends to support the respondent's contention that no adverse possession is necessary in such cases. that learned judge observed:there must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute, (the italics are mine).7. it is worthy of note that the starting point under the english statute is the accrual of the right of action, the same as under article 141, limitation act, though differently.....
Judgment:

Patanjali Sastri, J.

1. The suit out of which this appeal arises was brought for partition and separate possession of the appellant's share of a certain house in Salem Town of which this appeal is concerned only with the eastern portion measuring 10 ankanams which is hereinafter referred to as the house. The facts so far as they are material for the determination of this appeal are briefly these : The house belonged to one Servaraya Chetti who died some time before 1891 leaving him surviving his widow, Minakshi who died in that year. At the time of her death the nearest reversionary heir was one Alagiri Chetti who was the elder brother of Servaraya Chetti and the paternal grand-father of the present appellants. Alagiri Chetti died in 1900 leaving behind five sons of whom respondent 1 herein who has throughout been in occupation of the house is one.

2. The appellant's ease was that Minakshi left a registered will by which she devised the house to the five sons of Alagiri Chetti in equal shares of which the appellants claim two shares in the right of their deceased fathers Annaswami and Kanda-swami. As already stated, respondent 1 is one of the sons of Alagiri Chetti and respondents 2 to 8 are his descendants. The case of these respondents was that Servaraya Chetti having no issue brought up respondent 1's wife as his foster-daughter and made an oral gift of the house to her on the occasion of her marriage and that since then respondent 1 and his wife and their descendants have been in continuous possession and enjoyment of the house. Both the Courts below have found that the gift alleged by the respondents was not proved and that the will set up by the appellants was inoperative as Minakshi had no power under the Hindu law to effect any testamentary disposition of her husband's property. These findings are clearly right; and are not attacked in this appeal. But the trial Court further held that, notwithstanding the failure of their title under the will, the appellants, as representing two of the sons of Alagiri Chetty who succeeded to the house on the death of Minakshi, were entitled to two out of the five shares in which the house devolved on his sons at his death and that the long possession and enjoyment pleaded by respondent 1 and his descendants was of no avail to them, as it could not have been adverse to the appellants, respondent 1 having been a co-owner of the house with the other sons of Alagiri Chetti after the latter's death.

3. The learned Subordinate Judge disagreed with this view. He found that respondents 1 to 8 had been in possession of the house for over 40 years and that such possession and enjoyment existed even during the lifetime of Alagiri Chetti when respondent 1 had no title whatever to the property. He held that the fact that respondent 1 became a co-owner along with his brothers after Alagiri's death could not change the nature of his possession and that therefore the respondents had acquired title to the house by adverse possession and the appellants' suit was barred by limitation.

4. Mr. Sitarama Rao, the learned Counsel for the appellants, attacked this finding before me and contended that the gift put forward by the respondents having been found against their possession and enjoyment of the house till Minakshi's death must be deemed to have been only permissive, and the respondents not having shown that they were in possession after her death in assertion of a right inconsistent with that of Alagiri, the permissive character of their possession must be deemed to have continued throughout, with the result that there could be no acquisition of title by the respondents by adverse possession. I cannot accede to this contention. It is no doubt true that the lower Appellate Court based its decision upon the 'adverse possession' of the respondents during the long period they had been occupying the house, thus presumably applying Article 144, Limitation Act, to the facts of this case; but the proper Article applicable is clearly Article 141 and not Article 144, and therefore it seems to me, no question of adverse possession really arises. Minakshi having died in 1891 and there being nothing to show that Alagiri Chetti who was then entitled to succeed to the property ever took possession or assumed any kind of dominion or control of the house or permitted respondent 1 and his descendants to continue in occupation thereof, time commenced to run in 1891 under Article 141, and a suit brought by Alagiri or his heirs more than 12 years thereafter would stand barred and their title would, by the operation of Section 28 of the Act, be extinguished. Mr. Sitarama Rao indeed conceded at a later stage of his argument, that the proper Article applicable was Article 141 and that no question of adverse possession really arose. But he some what changed his ground and contended that once the gift put forward by the respondents was found against, they must be regarded as having lived in the house as mere guests, at any rate till Minakshi died, and thereafter their occupation cannot be regarded as legal possession at all so as to put Alagiri and his heirs to their action. In other words, time did not commence to run against Alagiri, for though he was not in actual occupation, he was in legal possession and there was no one against whom he could bring an action. For this contention, Mr. Sitarama Rao strongly relied on Trustees Executors and Agency Co. Ltd. v. Short (1888) 13 A.C. 793. Alternatively, Mr. Sitarama Rao also urged that even assuming that time commenced to run against Alagiri under Article 141, on Alagiri's death in 1900 before the expiry of the period of 12 years limited by that Article, respondent 1 became a co-owner of the house with his brothers including the fathers of the appellants, and this changed the character of the respondent's possession which must thereafter be ascribed to such co-ownership. In support of this contention, reliance was placed upon a decision of this Court in Velayutham v. Subbaroya Pillai A.I.R. (1916) Mad. 139.

5. I find it difficult to accede to either of these contentions. In the first place, it is highly doubtful whether respondent 1 could be said to have been in permissive possession during the lifetime of Servaraya or his widow Minakshi for these were living in the same house. Respondent 1 was in the house as a mere guest and it cannot be said that he was in any sense of the term in possession of the house even permissively. It was only after Minakshi's death in 1891 that respondent 1's possession of the house could be said to have begun and there is absolutely nothing in the case to show that such possession arose with the consent or permission of Alagiri who then succeeded to the property. Mr. Sitarama Rao urged that this was a natural inference having regard to the relationship of respondent 1 to Alagiri. But the lower Appellate Court has, in all the circumstances, refused to draw that inference of fact and indeed went further and found that respondent 1's possession was even adverse to Alagiri. It seems to me therefore that there is no scope here for the application of the proposition contended for by Mr. Sitarama Rao that occupation with the consent or permission of the owner does not amount to any legal possession at all. In this connexion the English case in Mayor of Brighton v. Guardians of Brighton 5 C.P.D. 368 is instructive. There to an action in ejectment brought in 1879 on behalf of the Brighton Corporation the defendants who had been allowed in 1853 by the predecessors-in-title of the Corporation to occupy some of their buildings pleaded the Statute of Limitations. The Court upheld the plea and observed at page 374:

It was contended that the defendants were mere licensees and had no possession of the premises, the possession remaining in the plaintiffs. We cannot accede to that contention and think that it is disproved by the facts. It is admitted that the defendants had the exclusive use of the offices and that they never paid any rent nor gave any acknowledgment in writing. How it can be said in these circumstances that the possession remained in the plaintiffs we are at a loss to understand.

6. These observations aptly apply to the contention of the learned Counsel for the appellants. It is no doubt true that the plaintiffs in that case asked for an acknowledgment in 1863 and it was refused but it is significant that the defendants were considered to have been in possession ever since 1853 (see the concluding passage at p. 375). As stated already, Mr. Sitarama Rao placed reliance upon Trustees Executors and Agency Co. Ltd. v. Short (188) 13 A.C. 793. The principle laid down there was that it is not sufficient for the purpose of the Statute of Limitations that the rightful owner has been out of possession but it is also necessary actual possession should have been held by a stranger in favour of whom the statute can operate. If respondent 1 is to be treated as, in my view, he should be, as having held possession throughout, the decision can obviously have no application here. On the other hand, the quotation from the judgment of Baron Parke in Smith v. Lloyd (1853) 9 Ex. 562 tends to support the respondent's contention that no adverse possession is necessary in such cases. That learned Judge observed:

There must be both absence of possession by the person who has the right, and actual possession by another, whether adverse or not, to be protected, to bring the case within the statute, (the italics are mine).

7. It is worthy of note that the starting point under the English statute is the accrual of the right of action, the same as under Article 141, Limitation Act, though differently expressed. The decision of the Privy Council reported in 12 Bang 238 was also relied on. There one Lim Chirr Tsong bought a house and allowed his mistress to live therein for more than 12 years during his lifetime. A gift to her was put forward but was found against. Lim Chin Tsong himself had all along been paying the rents and taxes and also making the necessary repairs. In a suit brought by the receiver of his estate about three years after his death to recover possession of the house, the question arose whether the possession of the mistress was adverse to Lim Chin Tsong, and their Lordships held that there was no evidence on which it could properly be held that she was possessing the property in a manner adverse to the continuance of the title in Lim Chin Tsong. I do not see how this decision supports the-contention of the appellant in this case where, as already stated, there is nothing to show that Alagiri ever did any proprietary act in respect of the house, and, ex concessi, no question of adverse possession arises.

8. Mr. Sitarama Rao also cited Gobind Lal Seal v. Debendranath Mullick (1881) 6 Cal. 311. There one Hira Lal Seal who was the owner of a house and the predecessor-in-title of the plaintiff allowed the defendant's predecessor to occupy the house and the question arose whether Article 142 or Article 144 governed the suit brought to recover possession of it. The learned Judges held that, Article 144 applied to the case, Garth C.J. observing:

But where the owner in the exercise of his own proprietary right permits some other person to occupy his land or to receive his rents then, whether the relation of landlord and tenant exists between the parties or not, I consider that the possession of the owner is not discontinued because under such circumstances the possession of the occupier is the possession of the owner.

9. Mr. Sitarama Rao particularly stressed the last sentence of this passage as showing that Alagiri must in this case be regarded as having been in possession of the house but, as already observed, he is not shown to-have permitted respondent 1 to occupy the; house after he became entitled to the property on Minakshi's death. This decision therefore does not support his contention. Mr. Sitarama Rao then referred me to the, well known case in Lyell v. Kennedy (1889) 14 A.C. 437. There the agent of a proprietor of an estate continued to receive the rents and profits even after the death of his principal in the same manner as he did before, i.e. not as for himself but as agent and receiver for the heirs of the deceased though they had not been ascertained, and the question was whether such receipt of rents dispossessed the true heirs of the deceased who brought the suit to recover the estate and for an account of the rents and profits and after the expiry of the statutory period, and it was held that there was no dispossession of the heirs under those circumstances. The Earl of Selborne observed at page 457:

Lord Coke's doctrine as to the effect of entry by an unauthorized stranger on behalf of the true owner, seems to me applicable, in reason and principle, to such a receipt of rents as that of the respondent in this case down to 1880 : 'If an infant, or any man of full age, have a right of entry into any lands, any stranger, in the name and to the use of the infant or man of full age, may enter into the lands; and this regularly shall vest the lands in them without any commandment, precedent or agreement subsequent.'

10. But this doctrine on which that decision was founded cannot obviously apply to the facts of this case as respondent 1 is not shown to have entered into or continued in possession of the lands in the name and to the use of Alagiri and the decision therefore does not help the appellant. Mr. Sitarama Rao also placed reliance upon the decision of the Privy Council in Ambu Nayar v. Secy. of State A.I.R. (1924) P.C. 150 and particularly the passage at p. 582 of the report where their Lordships observe:

Their Lordships think that a licensee cannot claim title only from possession however long unless it is proved that the possession was adverse to that of the licensor, to his knowledge and with his acquiescence.

11. In the first place, that was a case where the plaintiff claimed to have acquired title against the Government by adverse possession whereas, as already observed, there is no question of adverse possession in this case. Secondly for the reasons stated before respondent 1's exclusive possession of the house can be considered to have arisen only on Minakshi's death in 1891 and he is not shown to have entered under a license from Alagiri Ohetti. In the third place, even assuming that defendant 1 had been in possession even earlier under a license from Servaraya and Minakshi, it Seems to me that such license must be held to have elapsed with the death of Minakshi. A license does not create an interest in the land as it is merely leave to do a thing lawfully which otherwise would be unlawful and it is thus a matter purely personal between the grantor and the grantee of the license : see Chinnan v. Ranjithammal A.I.R (1931) Mad. 216 where the possession after the death of a licensee by his successors was held not to be permissive but adverse.

12. Turning next to the alternative contention of Mr. Sitarama Rao he strongly relied in support of it upon the decision in Velayutham v. Subbaroya Pillai A.I.R. (1916) Mad. 139. That case arose out of a suit for redemption to which the contesting defendant pleaded the bar of limitation under Article 134, Limitation Act, by reason of his-having been in possession for more than 12 years before the suit under a sale from the mortgagee. It was however found that within 12 years from the date of the purchase, the plaintiff and the contesting-defendant became entitled to the property as co-heirs of the mortgagor and it was held that the defendant's possession thereafter was not adverse to the plaintiff 'unless and until the latter was excluded notoriously.' With all respect, it is somewhat-difficult to understand how any question of adverse possession could arise under Article 134, Limitation Act, or how the accrual of a right to the defendant in co-ownership with the plaintiff before the expiry of the period would arrest the running of time under that Article. In any case I cannot regard this decision as a binding precedent in view of the later decision of the Privy Council in Varada Pillai v. Jeevarathnammal A.I.R. (1919) P.C. 44, where their Lordships definitely held that the adverse-character of the possession held by a person was not changed by reason of that person subsequently becoming entitled to a. share in the property. Mr. Sitarama Rao sought to distinguish that case by pointing out that the question of adverse possession did not arise in that case with reference to the possession of the share to which the person in adverse possession of the whole property became entitled as co-owner. I am however unable to see how that circumstance makes any difference in the principle of the decision or excludes the application of that principle to the present case. The person in possession there had been in enjoyment of the whole property like respondent 1 here. Later on, she became entitled to an undivided half-share in that property under a right of succession and their Lordships held that there was no Teason for holding that when she became legally entitled to a moiety of the property the character of her possession in respect of the other moiety was changed. The position, in my judgment, is essentially the same in the present case. Respondent 1 having been in possession of the whole house became legally entitled to an undivided fifth share thereof. In both the cases, the person in possession without a title became entitled to an undivided share in the property and if the accrual of a right to a moiety in the case before their Lordships could not change the character of the possession held and stop the running of time in its favour under Article 144, why should the accrual of a right to a fifth share in the suit house to respondent 1 on Alagiri's death affect his previous possession and arrest the course of limitation under Article 141? Following this decision of the Privy Council I disallow this contention also. In the result the appeal fails and should be dismissed with costs. Leave granted.


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