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Sinnaraj Pillai and ors. Vs. Ramayee Ammal and anr. - Court Judgment

LegalCrystal Citation
CourtChennai High Court
Decided On
Reported in(1968)2MLJ639
AppellantSinnaraj Pillai and ors.
RespondentRamayee Ammal and anr.
Cases ReferredAmeer Bibi v. Chinnammal
- order1. this is a letters patent appeal from the decision of our learned brother srinivasar, j., and is preferred by the defenants in a suit relating to certain landed properties praying for permanent injunction or in the alternative for possession with future profits. the claim of the plaintiffs is rested on two wills, one dated 7th april, 1934, and the other dated 5th march, 1940, the latter by the person claiming the entirety of the properties under the earlier will. the decree of the trial court accepting the plaintiffs' claim and giving them possession, was confirmed on appeal by the learned subordinate judge, dindigul, and has been affirmed in second appeal in this court. the plaintiffs have been awarded future mesne profits to be determined under order 20, rule 12, civil procedure.....

1. This is a Letters Patent Appeal from the decision of our learned brother Srinivasar, J., and is preferred by the defenants in a suit relating to certain landed properties praying for permanent injunction or in the alternative for possession with future profits. The claim of the plaintiffs is rested on two wills, one dated 7th April, 1934, and the other dated 5th March, 1940, the latter by the person claiming the entirety of the properties under the earlier will. The decree of the trial Court accepting the plaintiffs' claim and giving them possession, was confirmed on appeal by the learned Subordinate Judge, Dindigul, and has been affirmed in Second Appeal in this Court. The plaintiffs have been awarded future mesne profits to be determined under Order 20, Rule 12, Civil Procedure Code.

2. The principal questions that arise for consideration are the interpretation of the will dated 7th April, 1934, and the true scope and effect, if any, of Sections 106 and 107 of the Indian Succession Act (XXXIX of 1925), in relation to that will. The suit properties, a tope, originally belonged to one Chinnathambia Pillai and he left the will dated 7th April, 1934, a registered instrument, bequeathing certain properties including the suit properties to his second wife Meenakshi Ammal and her only daughter Muthammal. The daughter Muthammal predeceased the testator--she died on 28th March, 1936. The testatordied on 4th November, 1936. The first plaintiff in the suit is a subsequently born daughter of the testator by the second wife Meenakshi Ammal and the second plaintiff in the suit is her lessee. Defendants 1 to 4 in the suit are sons of one Arunachalam, deceased son of the testator by his first wife. Prior to his will the testator had divided himself away from his son Arunachalam and they were living separately, the properties comprised in the will being the separate properties of the testator. It is the case of the plaintiffs that on the death of the testators, Meenakshi Ammal the second wife, entered into possession of all the properties, the subject-matter of the will, and continued in exclusive possession of the same till her death in 3rd May, 1959. It is claimed that she got patta for the properties transferred to her name. Meenakshi Ammal left a will bequeathing the properties to her only surviving daughter, Ramayee, the first plaintiff. The plaintiffs came to Court on the averment that after the first plaintiff entered into possession of the properties on the death of her mother and leased the suit properties to the second plaintiff, defendants 1 to 4 with the help of the other defendants attempted to trespass on the properties and prevented the enjoyment of the suit tope by the plaintiffs.

3. The defence as it ultimately emerged is simple. It is urged for defendants that as Muthammal predeceased the testator, the half share of the estate in the legacy intended for her, fell into the residue of the testator's properties and Arunachalam, father of defendants 1 to 4, succeeded to the same as his father's heir in Hindu Law. They plead that Meenakshi Ammal and Arunachalam were in joint possession of the properties as tenants-in-common and the tenancy-in-common was continued after the death of Arunachalam between defendants 1 to 4 and Meenakshi Ammal, till her death on 3rd May, 1959. For the plaintiffs it is contended that the original bequest of Chinnathambia Pillai was a joint bequest in favour of his second wife Meenakshi Animal and his daughter Muthammal and that on the death of Muthammal. the second wife Meenakshi Animal took the entire estate in terms of Section 106 of the Indian Succession Act. If the plea of joint bequest is upheld and Section 106 applied there is no defence to the action. The defendants have not pleaded any adverse possession and they conceded possession of Meenakshi Animal till her death in 1959. The Courts below, and our learned brother, Srinivasan, J., in Second Appeal, have upheld the plaintiffs' contention that under the will Exhibit A-l of Chinnathambia Pillai, the mother and the daughter took a joint estate resulting in the mother Meenakshi Ammal becoming the sole legatee of the entirety of the properties on the death of her daughter Muthammal. It is this interpretation of the will that is the subject of challenge before us by Sri T. P. Gopalakrishnan, learned Counsel for the appellants.

4. It will be convenient to set out first the material portions of the will. Broadly translated they are to this effect:

With a view to avoid all disputes relating to these properties after my lifetime and claims by others to the same, under the terms of this will I give these properties to my wife for her maintenance and for my minor daughter Muthammal for her sridana seer and other expenses. After my life-time these two persons shall take items 1 and 2 hereunder absolutely and enjoy the same with powers of gift, sale, etc., they themselves discharging the debts specified hereunder. Neither of them shall have power to alienate the third item. Whoever performs the obsequies of Meenakshi Animal, shall take the same.

5. In our view, on the plain language of the will, it is difficult to hold that the legatees thereunder take as joint tenants with rights of survivorship between them. We are dealing with a testamentary disposition of a Hindu and we cannot readily import in the construction of his will that a gift under a will to two persons ex facie constitutes joint tenancy between them. A gift of lands to two or more persons in joint tenancy is such a gift as imparts to them, with respect to all other persons than themelves, the properties of one single owner and the distinguishing feature of joint tenancy is the right of survivorship. On the death of one joint tenant, his interest in the properties passes to the other joint tenants by survivorship and this process may continue until there is, but one survivor, who would then hold as sole tenant.

6. Section 106 of the Indian Succession Act which is relied upon for the plaintiffs is one of a fasciculus of sections dealing with the doctrine of lapse of legacies. We are concerned here, particularly with Sections 105 to 108 and it is better they are set out:

Section 105 (1)--If the legatee does not survive the testator, the legacy cannot take effect, but shall lapse and form part of the residue of the testator's property? unless it appears by the will that the testator intended that it should go to some other person.

(2) In order to entitle the representative of the legatee to receive the legacy, it must be proved that he survived the testator.

Section 106.--If a legacy is given to two persons jointly, and one of them dies before the testator, the other legatees take the whole.

Section 107.--If a legacy is given to legatees in words which show that the testator intended to give them distinct shares of it, then, if any legatee dies before the testator, so much of the legacy as was intended for him shall fall into the residue of the testator's property.

Section 108.--Where a share which lapses is a part of the general residue bequeathed by the will, that share shall go as undisposed of.

As the Illustration to Section 106 is broadly relied upon, we are giving the same hereunder.

The legacy is simply to A and B. A dies before the testator. B takes the legacy.

7. These provisions have been made applicable to Hindu under the 1925 Indian Succession Act. The corresponding provisions for Section 106 in the old Act is Section 93. The Illustration gives the presumption of English law that a gift to two persons with words of limitation prima facie constitutes a joint tenancy between them. But there is no such presumption in, the case of persons governed by Hindu law and the question for consideration is whether Section 106 is a statutory provision making every gift or bequest to two persons a joint estate, that is, statutory and obligatory rule of construction or a provision against lapse of a legacy to the residue in the event of the estate granted on the interpretation of the testament in question being a joint estate, that is, does the section with its Illustration necessarily import the English idea of joint estate in the case of bequest to two persons irrespective of the interpretation, which the Court would ordinarily give to the will in question. The reference to ' two persons jointly ' in Section 106 of the Act obviously means a bequest to a plurality of persons and not just to two persons in the arithmetical sense. In our view, the Illustration deals with a legacy simpliciter to A and B without anything more and so may not be helpful in construing the section. The section speaks of a legacy given to two persons jointly and our reading is that if the testament when construed makes out that the legacy is given to two persons jointly, then on the death of one of the legatees before the testator his share therein does not fall or lapse into the residue, but the other legatee takes the entirety of the estate. This section must be read along with Section 107 and interpreted accordingly. Section 107 deals with a case of legacy where the intention as brought out by the language of the will is to give the several legatees distinct shares therein. Section 106 provides for cases where the testator intends the legatees to take the gift jointly. The Court must, before it applies Section 106, infer from the terms of the will an intention that the legatees should take the estate jointly with its incidents of survivorship. Section 106 does not rule out the application of established rules in the matter of construction of wills. The Court of construction will have to put itself so to say, in the testator's arm-chair and consider the will as a whole in the light of the circumstances attendant at the execution of the will. Then it asks itself, what could he have intended circumstanced as he was. The meaning of the words used what the words convey would depend upon their setting the class to which the testator belonged the religious and social influence, and the known practices, notions and wishes likely to be held by the testator with reference in his estate in the situation in which he was. The words of a will are not used in vacuo. Now it is well established that the principle of joint tenancy is unknown to Hindu Law, except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law, which under that law passes by survivorship Mt. Bahurani v. Rajendra Baksy . In that case, there were grants made to two brothers and their heirs absolutely and the question was whether the grants were to the two brothers generally or as members of joint family. Their Lordships of the Judicial Committee observed as fellows:

In their Lordships' opinion this is a clear ruling that the principle of joint tenancy is unknown to Hindu Law except in the case of the joint property of an undivided Hindu family governed by the Mitakshara law which under that law passes by survivorship. There could, therefore, be no question of the grants creating a joint tenancy as opposed to a tenancy-in-common, even if according to the English law, the terms of these instruments admitted of such a construction.

8. In Jogeswar Narain Deo v. Ramchandra Dutt I.L.R. (1896) Cal. 670, the construction of a will of a Hindu testator whereby he bequeathed 4 annas share of a zamindari to his youngest widow and her son with power to them to alienate or sell the property bequeathed came up for consideration before the Judicial Committee. The Zamindar had executed the will in the apprehension that the legatees, his youngest wife and her son, would be unable to live peaceably with his elder son and other members of the family after his death. The question as to the interest which the two legatees took in the estate arose when the son after becoming a major, questioned the alienation made by his mother of the two annas share therein which she claimed as her own. The contention that the mother and son became, in the sense of English law, joint tenants of the four annas share and not tenants-in-common was overruled by the Judicial Committee, observing that the Court would not be justified in importing into the con- , struction of a Hindu will an extremly technical rule of English conveyancing. They observed that the principle of joint tenancy appeared to be unknown to Hindu law except in the case of coparcenary between the members of an undivided family. This principle was affirmed by the Supreme Court recently in Bhagwan v. Reotidevi : [1962]3SCR440 . But that does not mean that because the principle of joint tenancy is unknown to Hindu law outside the coparcenary, there can never be a bequest to be taken by two persons jointly. That there can be a gift of property even among Hindus to two persons to be held jointly outside the coparcenary, is clear from the pronouncement of the Privy Council in Nandi Singh v. Sitaram L.R. (1889) 16 IndAp 44 : I.L.R. (1889) Cal. 677. In that case, the last holder executed a deed of gift of the property, in dispute in favour of her daughter and her husband, that is, his son-in-law jointly. It was an absolute gift and under the wazib-ul-arz which governed the succession in the case the gift in favour of son-in-law was invalid. A contention was raised that for that reason, the whole gift failed. Repelling the -contention, the Judicial Committee observed:

The gift is to the two donees jointly and in Humphrey v. Tayleur Ambeer 138 Lord Chancellor Hardwicke said,' if an estate is limited to ' two jointly, the one capable of taking, the other not, he who 'is capable shall take the whole'. This principle does not depend upon any pecularity in English law and is applicable to this deed of gift.

9. It follows that there can be a joint gift in favour of two persons even when the parties are Hindus. To such cases Section 106 will certainly be attracted. It all depends upon the intention of the testator as could be gathered from the language of the instrument and the surrounding circumstances.

10. The true scope of Section 106 of the Indian Succession Act has been the subject of careful consideration by one of us in Sanjeevi Reddi v. Ahilandathammal and Minor Radhna A.S. No. 84 of 1957 (unreported) by Anarttanarayanan, J., as he then was. In that case there was extensive citation of the available authorities upon the problem of interpretation of the section and in the light of the decisions, it was observed therein as follows:

They (sections 106 and 108) are not really statutory rules of construction of Hindu wills, or of testamentary disposition in general. They are rules which provide for a further devolution of an estate in one contingency, namely, where one of several legatees dies before the testator. Section 106 provides for the devolution where the legacy is a joint legacy, in precisely the same manner. Section 107 provides for the devolution where the legacy is a gift in severalty. But it would lead to absurd results, and it would be logically fantastic if we apply Section 106 or Section 107 as the case may be, in such a manner as to involve the construction of a will in different terms from those upon which the will would be normally otherwise construed. There are many decisions-laying down the principle upon which wills should be construed by Courts and perhaps the most compendious statement of the criteria will be found in Narasimha v. Parthasaratfiy I.L.R. (1914) Mad. 199 : 1914 L.R. 41 IndAp 51 : 1914 26 M.L.J. 411, where the famous metaphor of ' the armchair of the testator ' has been used by the Judicial Committee. But a will which is construed as a joint legacy, or as a legacy in severalty, as the circumstances may warrant, cannot be something else because one of the legatees happens to die before the testator. I do not think that this line of reasoning can really be disputed...It appears to me per contra, rather that we should first construe the terms of any will upon the general principles, and then proceed to apply Section 106 or 107 as the case may be, to the specific contingency of the death of one of the legatees before the testator, which these sections seek to provide for.

11. The following cases inter alia had been cited then : Vidyanada v. Nagammal I.L.R. (1888) Mad. 258, Seshureddi v. Mallareddi : AIR1935Mad852 , Krishnaswami v. Arqyambal : AIR1933Mad204 , Venkatakrishna v. Madatnma : AIR1928Mad926 , Janakiram Chettiar v. Nagamami Mudaliar : (1926)50MLJ413 , Karuppai Nachiar v. Sankaranarayana Chetti I.L.R. (1904) Mad. 300 : 13 M.L.J. 398,. Mulhamtrial v. Chandrakesa Udayar (1950) 63 L.W. 378, Mt. Jio v. Aft. Ruturan A.I.R. 1927 Lah. 126, Deokali v. Ram Jag , Gopi v. Mt. Jaldkara I.L.R. (1911) All. 41, Narasimha v. Parthasarathy (1914) 41 I.A. 51 : 1914 26 M.L.J. 411 : I.L.R. (1914) Mad. 199, Sura Reddi v. Venkatasubba Reddy (1960) 1 A.W.R. 102 The decision point out that the observation in Sara Reddi v. Venkatasubba Reddy (1960) 1 A.W.R. 102, referring to Section 106 as a rule to enable Courts in construing wills, does not convey the precise import of the section. We may state that though this section. occurs under the chapter headed ' Of construction of wills ' in its effect it is not a rule of construction of a will, but a provision for devolution.

12. The further question about the requirement specified in Section 107 for application of the section, that the ' legacy is given to legatees in words which show that the testator intended to give them distinct shares of it' has also been discussed in the above unreported decision. While Counsel in that case were agreed that Sections 106 and 107 between themselves exhausted case of the death of a legatee before the testator in cases of joint gifts or gifts in severalty, an argument was raised that for Section 107 there should be actual expressions in the will providing for the legatees, taking in distinct shares and that the section did not warrant an inference that the legatees should take the shares in severalty by mere implication or interpretation. Learned Counsel had contended that if specific expression providing for the legatees taking distinct shares were not found in the will, there was no alternative, but to interpret the will as amounting to a joint gift and apply Section 106. Dealing with this contention it was observed that the language of Section 107 amounts to nothing more than this:

Where, from the language employed in the will or gift, the inference is justified that it was a gift in severalty, thereby amounting to a tenancy-in-common and to distinct shares, then the principle applies, where one of the legatees died before the testator. That is the permissible interpretation, for otherwise, we would be driven to conclude that there is a third case, a medium quid not provided for by these two sections, which is not the contention of either learned Counsel. I do not think it can be seriously disputed that, in interpreting the terms of words of a will, or even of a statute, the entire text or body of the words has to be taken into consideration along with every essential implication arising from the particular language employed....I am of the view that Section 107 merely employs language amounting to this, namely, that where, having regard to the dispositions and the surrounding circumstances, the inference is justified that the legacy was in severalty (which would necessarily be in distinct equal shares, unless unequal share were specified, the principle of the section would apply, in the case of death of a legatee before the testator.

13. We have heard no arguments to differ from the views then expressed.

14. We shall now examine the will before us in the light of the above principles. We bear in mind that a Hindu testator is perfectly at liberty like any other testator to make a joint bequest in favour of two or more legatees and such a bequest can be inferred from the explicit language used, or from the language interpreted in the light of the surrounding circumstances, which justify a joint bequest as the only reasonable inference. In Sura Reddi v. Venkatasubba Reddy (1960) 1 A.W.R. 102 above referred to, it was inter alia observed:

It cannot be postulated that whenever a gift is made to two or more persons jointly, they take it only as tenants-in-common irrespective of the intention of the donor. It all depends on the intention of the testator as could be gathered from the language of the instrument and the surrounding circumstances. Such a construction does not in any way violate the principles of Hindu Law.

But we have to bear in mind that as pointed out in Robertson v. Fraser L.R. 6 Ch. App. 696:

Equity favours the construction that legatees were to take separate shares as tenants-in-common and hence the Court would utilise even a very slight indication of such an intention, to draw that inference.

15. In the present case, the testator is apprehensive that : dispute may arise after his death between his son by his first wife, who had got himself divided and the junior wife and her minor daughter. He wants to provide for them and he wants to provide seer and sridhana for his minor daughter. The legatees have been given absolute rights in the properties bequeathed with full powers of alienation by way of gift, sale, etc. There were debts to be discharged and the legatees have been enjoined to discharge them. With reference to one of the items bequeathed, the third item, it is provided that neither of the legatees shall have the power to alienate that item and that the item should be taken by the person, who performed the funerals of the junior wife. Here the testator expects both his junior wife and daughter to outlive him and take the bequest. He expects his daughter to be married away and provided with seer and sridhana. It is manifest that the intention of the testator as disclosed in the above provisions may be defeated, if the principle of joint tenancy with its incident of jus accrescendi should be applied to the bequest. Such an estate is unsuitable when we are concerned with beneficial owners like a Hindu widow and her unmarried minor daughter, who has to be married and provided with sridhana and seer, etc. A joint bequest introduces an element of chance. Certainly the testator would not intend that after his death, should his daughter die joint but leaving her own son, the estate must survive to the widow. In Megarry, the Law of Real Property, 2nd Edn. at page 243, the position even in English law is stated as follows:

Even if there were no clear words of severance, the gift taken as a whole might show that a tenancy-in-common was intended. Thus provisions for the use of capital or income, or both, for the maintenance and advancement of those concerned created a tenancy-in-common. For example, if under a settlement on children containing such provisions as advance was made to one child, it would have to be debited against the child's share and this could not be done unless the child was a tenant-in-common and so had a distinct share.

16. In our view, the language of the will, interpreted in the light of the above principles, does not permit treating the bequest in favour of Meenakshi Ammal and Muthammal as a joint bequest bringing in its wake, Section 106 of the Indian Succession Act. It follows that the half share of Muthammal in the properties bequeathed lapsed and has to be treated as undisposed of. The result is that on the testator's death, Arunachalam as the then heir of the properties of the testator succeeded to the half share. Arunachalam and Meenakshi Ammal became co-heirs in respect of the suit properties, Meenakshi Ammal as the legatee and Arunachalam as the heir-at-law.

17. But this finding of ours, differing from Srinivasan, J., and the Courts below, does not necessarily entail the dismissal of the suit, or the acceptance of the defence, the plain tiffs have further pleaded that on the death of Chinnathambia Pillai, Meenakshi Ammal considered herself to be entitled to the properties bequeathed to her and Muthammal, entered on the possession of the properties and perfected her title by adverse possession. This plea of adverse possession was met by the defendants with the specific case that Arunachalam as the heir of Chinnathambia Pillai took possession of the properties jointly with Meenakshi Ammal and was in joint possession and enjoyment with her. It was pleaded that the plaintiff's mother and defendants 1 to 4 and their father Arunachalam had enjoyed the properties as tenants-in-common. On these pleas the trial Court raised the three following issues (Issues 1, 3 and 5):

Issue 1 :--'Whether the plaintiff succeeded to the properties covered by the will as contended by the plaintiffs and whether the plaintiff's mother was in exclusive possession.

Issue 3 :--Whether the plaintiff's mother and defendants 1 to 4 and their father enjoyed suit property as tenants-in-common? If so, whether the suit either for injunction or for possession is not maintainable?

Issue 5 :--Whether the plaintiff's mother had prescribed title by adverse possession?

18. Having held that the plaintiffs' mother had succeeded to the entirety of the properties covered by the will and the properties did not vest on Arunachalam and the plaintiffs' mother as tenants-in-common, the trial Court, examining the evidence regarding possession at some considerable length, concluded:

I find that the first plaintiff has proved that her mother was in exclusive possession for more than 12 years and the defendants 1 to 4 have not proved their joint possession.

19. The learned District Munsif points out that the defendants had not pleaded any adverse possession and only the plaintiffs had pleaded that they perfected their title by adverse possession. He points out that he had already found that Arunachalam and defendants 1 to 4's father did not get any interest in the suit properties under the will Exhibit A-l and, as such the question of joint possession by the defendants did not strictly arise in the case. He was also not satisfied with the evidence of joint possession let in by the defendants. On this he found the issues regarding adverse possession and prescription in favour of the plaintiffs. The lower appellate Court even as the trial Court, rejected the case of the defendants that Arunachalam and Meenakshi Ammal and subsequently, Meenakshi Ammal and the first defendant jointly enjoyed the suit properties. The appellate Court would hold that the evidence for the defendants on this aspect of the matter was thoroughly artificial and falsified by documentary evidence. The lower appellate Court would hold in favour of the exclusive possession and enjoyment of the suit properties by Meenakshi Ammal and after her, by her daughter and it observed that this possession was adverse to Arunachalam and his heirs, namely, defendants 1 to 4, for over the statutory period. It is found that defendants 1 to 4 never enjoyed the suit properties separately or jointly with Meenakshi Ammal. In Second Appeal, the question of adverse possession and acquisition of title by prescription pleaded for the plaintiffs was not examined and there is just a passing observation, that even in the view that the bequest was several, admittedly the mother was in possession of what might be deemed to be the daughter's share of the property from the date of the testator's death tilt the date of suit and that any person claiming under Muthammal will obviously be affected by adverse possession. But where is the question of anyone claiming under Muthammal, the daughter? Muthammal having predeceased her father, her interest as legatee never vested in her for her to be fresh stock of descent. The lower appellate Court has fallen into the same error, when it observed that the fact that Meenakshi Ammal and Muthammal succeeded to the properties as tenants-in-common did not affect the case because in its view on the death of Muthammal, her mother Meenakshi Ammal succeeded to the rights of Muthammal in the properties as the heir of Muthammal under Hindu Law.

20. Learned Counsel for the appellants points out that the finding as to adverse possession found in the three judgments, no doubt, each concurring with the others, as it stands, cannot avail the plaintiffs. Learned Counsel urges that in their approach to the question of adverse possession all the Courts have overlooked that the adverse possession or acquisition of title by prescription pleaded by the plaintiffs would not, once it is held that the legatees took as tenants-in-common, be against a stranger, but against a tenant-in-common. Now, while mere possession of a person without any title may be adverse to the true owner possession being an indicia of title, mere exclusive possession would not do, to constitute adverse possession against a tenant-in-common. No doubt, the article of Limitation Act applicable even among tenants-in-common is the residuary Article 144 of the Limitation Act of 1908. But where the parties are co-owners, there is unity' of possession, possession of the co-owner is possession of all the co-owners and for possession to become adverse, there must be something more than exclusive occupation, there must be as it is termed ouster. The law as to what amounts to oaster or adverse possession between co-owners is well-settled. A tenant-in-common will not be permitted to claim the protection of the statute of limitation and plead acquisition of title by prescription, against his co-tenant, unless it clearly appears that he has repudiated the title of his co-tenant and has been holding adversely to him for the statutory period. Exclusive possession by one co-tenant being consistent with the subsistence of the tenancy-in-common, to be adverse there must be outward acts of exclusive ownership or possession hostile to the tenauts-in-common. While the ultimate finding whether there is ouster or not is a matter for inference from facts and there can be no comprehensive formula to test whether the possession of a co-tenant in a particular case is adverse to the other co-tenant, when the plea is of adverse possession against a tenant-in-common the approach to the determination of the question is different. The Court cannot be satisfied with mere exclusive possession of one tenant-in-common. A tenant-in-common pleading ouster must establish that there was denial of the other co-owner's right in the properties, that the denial was sufficiently notorious and open, that the tenant-in-common out of possession should have got knowledge of it, and that the tenant-in-common in possession continued to enjoy the properties in repudiation of the rights of the other co-tenant in the properties for the statutory period. (See jogendra Nath Roy v. Baldeo Das I.L.R. (1908) Cal. 961, Krishnayya v. Udayalakshmanna : (1953)2MLJ241 , Jagannath Marwari v. Smt. Chandni Bivi (1922) 26 C.W.N. 65, Lakshmi Reddi v. Lakshmi Reddi : 1995(5)SCALE509 , Peeran Sahib v. Jamaldin Sahib A.I.R. 1958 AP. 48, Palani Pillai v. Ibrahim Rowther : AIR1942Mad622 , Chenbasavana Gowd v. Mahabaleswarappa : [1955]1SCR131 , Ameer Bibi v. Chinnammal (1967) 1 M.L.J. 461 : I.L.R. (1968) Mad. 533.

21. It may be that the evidence recorded in this case when examined, would satisfy the test of ouster necessary to bar a co-tenant out of possession. If the original entry on the properties by Meenakshi Ammal on the death of her husband was to the knowledge of Arunachalam, as a person entitled to the entirety of the properties and Arunachalam had been kept out of possession and enjoyment, that may go a long way to establish ouster. In that case the very entry on the properties is hostile. It would become hostile and adverse even subsequently. But in none of the judgments of the Courts below, do we see that the Court was conscious of the fact that it had to find ouster before it could hold that the co-tenants out of possession had lost their title by prescription. The finding of the trial Court ultimately arrived at is that the first plaintiff and her mother had been in exclusive possession for more than twelve years and that defendants 1 to 4 had not proved their joint possession. This by itself on the principles stated above will not do; the evidence has not been scanned to find if there was ouster. Exclusive possession of one co-owner is not the same thing as hostile exclusion of the other co-tenant. It is the latter that constitutes ouster, an i makes possession adverse. The judgments on appeal have not gone further and discussed the problem from the standpoint of the parties being tenants-in-common.

22. But it is clear, that the parties knew what they were about, when the plaintiffs pleaded acquisition of title by prescription as an alternative to plea that the bequest was a joint one and the defendants sought to counter this by pleading joint enjoyment of the suit properties. Only the Court's attention was not drawn to the fact, that the plea of adverse possession came in the alternative and was on the basis of a tenancy-in-common and they must look for ouster, not just exclusive occupation. We think that in the interest of justice, the parties must be given an opportunity to agitate this question over again, letting in further evidence, if they consider necessary. We would repeat that we are not finding against the plaintiff plea of adverse possession against the defendants. The evidence even as it is may be sufficient to sustain the first plaintiff's acquisition of title by prescription, or it may be the other way. We do not go into the evidence, we say nothing on the merits, as it is a matter for the Court of fact to decide. In fairness to the defendants they could not be concluded on a finding of loss of title by prescription, when the decision is given on a manifestly erroneous approach. Having regard to the fact that the suit is of the year 1959, it is sufficient, if the subordinate Judge of Dindigul is asked to submit a fresh finding on the question.

Whether Meenakshi Ammal had by the time of her death in 1959 perfected her title to the half share of Arunachalam in the suit properties by ouster and adverse possession?

23. The parties may, if they have, let in further evidence on the question, and the Subordinate Judge will submit his finding on the evidence already on record and the additional evidence, if any tendered, in the light of the principles above set out within ten weeks from the receipt of the records. Time for objection to the findings, if any, ten days.

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