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Ponnaya Tirumalai Vandaya thevar and ors. Vs. Kandasami Vendaya thevar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in17Ind.Cas.136
AppellantPonnaya Tirumalai Vandaya thevar and ors.
RespondentKandasami Vendaya thevar and ors.
Cases Referred and Dursun Sing v. Durbijoy Singh
Excerpt:
limitation act (ix of 1928), schedule i, article 141 - property held by widow--suit by reversioner to recover after death of widow--adverse possession--limitation--tenant-in-common--right to recover whole property. - .....quite open to him to recover his own share. the adverse possession of the defendant might bar any suit by parvati to recover her share after the expiration of 12 years, but it would not bar the plaintiffs' right to recover the half share as the heirs of ramasami after the death of parvati.3. a point of minor importance is urged, namely, that it has not been found that the defendants are in possession of one-half of items nos. 6 to 10, which they asserted were in the enjoyment of one subramania pillai and that, therefore, the plaintiffs are not entitled to a decree for mesne profits against the defendants for the half share of those items. this contention must be upheld, unless it be found that the defendants are in possession of all the properties. the learned vakil for the respondents.....
Judgment:

1. We are of opinion that the judgment of the Appellate Court in this case is right. The plaintiff claimed to recover the properties in question as the reversioners of one Ramasami Tevar, a zemindar, who held an impartible estate. At the time of his death, he left a widow, Parvati, a brother, the 1st defendant in the suit, and two illegitimate sons, the 1st plaintiff and the father of the plaintiffs Nos. 2 and 3, It was established in a previous litigation that the zemindari fell to the 1st defendant. Subsequently, Original Suit No. 25 of 1892 was instituted by the 1st plaintiff against the 1st defendant, in which the father of plaintiffs Nos. 2 and 3 was made a party defendant. The claim in that case related to the private property of the deceased zemindar, Ramasami Thevar. It was held in that suit that the plaintiff there, that is the 1st plaintiff, was entitled to a one-fourth share and the father of plaintiffs Nos. 2 and 3 to another one-fourth share, the widow Parvati being entitled to the remaining half. Parvati died recently and the present suit is for the recovery of the half share which belonged to her. The defendants, consisting of the 1st defendant and his issue, pleaded limitation. The Subordinate Judge held that the plaintiffs' right to Parvati's share accrued only at her death and, under Article 141 of the Limitation Act, the suit was not barred by limited.

2. (sic) appeal that (sic) absolutely (sic) be taken (sic) doubt, intercepted a half share of her husband's (Ramasawmy's) estate from the plaintiffs so long as she lived, but the plaintiffs' claim is as heirs of Ramasami, a right which accrued to them only on the death of the widow. It is argued that the plaintiffs could and should have sued the 1st defendant for the whole of the property when he instituted Original Suit No. 25 of 1892, because, as against a stranger, a tenant-in-common is entitled to recover the whole estate. And it is further contended that, in consequence of the plaintiffs' failure to do so, the defendant's possession must be treated as adverse to the plaintiffs. We cannot accept this argument. Parvati was entitled to a half share during her life and the 1st plaintiff was entitled only to the remaining half. The right of a tenant-in common to recover the whole property as against a trespasser is a right which he is entitled to assert only on behalf of himself and his co-tenants. He could not do so in the assertion of a right to the whole property in himself. See Kola Naiken alias Rama Naicken v. Muthyammal 21 M.L.J. 997; 10 M.L.T. 265 : 112 Ind. Cas. 76 and Dursun Sing v. Durbijoy Singh 9 C.L.J. 623. If he asserted an exclusive title in himself, the suit would be liable to be dismissed. A tenant-in-common is not bound to make a claim on behalf of his co-tenants. It is quite open to him to recover his own share. The adverse possession of the defendant might bar any suit by Parvati to recover her share after the expiration of 12 years, but it would not bar the plaintiffs' right to recover the half share as the heirs of Ramasami after the death of Parvati.

3. A point of minor importance is urged, namely, that it has not been found that the defendants are in possession of one-half of items Nos. 6 to 10, which they asserted were in the enjoyment of one Subramania Pillai and that, therefore, the plaintiffs are not entitled to a decree for mesne profits against the defendants for the half share of those items. This contention must be upheld, unless it be found that the defendants are in possession of all the properties. The learned Vakil for the respondents is willing to waive his claim for the mesne profits of half of items Nos. 6 to 10.

4. The decrees of the lower Courts will, therefore, be modified by directing that the plaintiffs do recover mesne profits only on one-half of items Nos. 6 to 10. We affirm the decree of the Subordinate Judge in other respects and dismiss this second appeal with costs.


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