Thiagaraja Pillai vs Appavoo Pillai and Others

Venkatasubba Rao, J.—There were four items of property each belonging to a different person. The suit properties were adjacent to those

four items and the four persons mentioned above owned them as tenants-in-common. In execution of a decree passed against one of the four men

whom I shall call C, defendant 1 purchased the items covered by the suit in 1899., At that time C, as I have said, was only one of the four

proprietors who owned the items as tenants-in-common. But as the lower Courts have rightly held, what defendant 1 purported to purchase was

not merely the one-fourth share of C, but the items as a whole. The plaintiff files this suit on the strength of a sale deed executed in his favour in

1923 by another co-tenant whom I shall call F. The plaintiff''s case is that he is entitled to recover from defendant 1 the one-fourth share which he

(the plaintiff) purchased from F. The lower Courts have rejected the plaintiff''s claim. The question is whether defendant 1 has acquired title to the

suit plots by adverse possession.

When one of the co-owners does any act, the law will not presume that it was done in exercise of ownership adversely to the other co-owners,

the reason being "" possession is never considered adverse if it can be referred to a lawful title :"" see Thomas v. Thomas [1856] 2 K.&J. 79, cited

in Corea v. Appuhamy [1912] A.C. 230. The result is that those acts which, in the case of a stranger, would amount to assertion of a hostile title,

would not be, in the case of a co-tenant, acts of dispossession; for, in his case, they are susceptible of explanation consistent with his recognizing

the rights of the other co-owners. The possession then by one co-owner being in law prima facie the possession of all, he cannot put an end to that

possession by any secret intention in his mind. As Lord Macnaughten observes in the case already quoted, Corea v. Appuhamy [1912] A.C. 230:

nothing short of ouster or something equivalent to ouster could bring about that result.

The following passage from the judgment in Jogendra Nath Rai v. Baldeo Das [1908] 35 Cal. 981 brings out this point very clearly:

A co-tenant will not be permitted to claim the protection of the statute of limitation unless it clearly appears that he has repudiated the title of his

co-tenant and is holding adversely to him; it must further he established that the fact of adverse holding was brought home to the co-owner either

by information to that effect given by the tenant-in-common as; sorting the adverse right, or there must be outward acts of exclusive ownership of

such a nature, as to give notice to the co-tenant that an adverse possession and disseisin are intended to be asserted.

I may also refer to my judgment in Saminatha Nayinan Vs. Kuppuswami Ayyar, . I made observations to the same effect. In this case defendant

1 being a purchaser from a co-owner does he stand in a different position? In other words, can he rely upon acts which may amount to adverse

possession in the case of a stranger but may fall short of it in the case of a co-tenant? On this point some cases have been cited. The effect of the

decisions is set forth very clearly in the judgment of Odgers, J., in Govindasami v. Kothandapani AIR 1927 Mad. 111. I agree with that learned

Judge that the point cannot be said to have been decided definitely by this Court. As Odgers, J., observes, the conflict is as regards the following

point : in the case of a purchaser from one co-owner can title by adverse possession be acquired against the other co-owners without their being

put on notice either actual or constructive, that adverse possession is running against them? I may however note that a further distinction is

attempted in one case, namely,, as regards the effect of notice or want of notice of a certain fact, on the part of the purchaser : Venkatarama Ayyar

v. Subramania Sastri AIR 1924 Mad. 741. So far as that distinction is concerned, no other case seems to advert to it. But it is unnecessary for me

to pursue this enquiry. Nor is it material to discuss which of the two sets of cases referred to by Odgers, J., decides the point correctly.

In this case what was purported to be sold and bought was the entire property. The sale was made openly and, as the lower Courts find, the

other co-tenants were clearly aware of it. Defendant 1 must be taken to have repudiated the title of the others then and there. They, had notice of

this '' hostile assertion and ever since the purchase defendant 1 has been dealing with the property as exclusively belonging to himself. Those

elements which would in the case of co-owners be necessary exist in this case. The second appeal fails and is dismissed with costs.