Judgement

Appeal from a judgment and decree of the High Court (November 19, 1915), reversing a decree of the District Court of Chinglepat (August 11, 1912).

The suit was instituted by the appellants in October, 1912, against the respondent, claiming a declaration of their title to a moiety of a mitta, or estate, known as Kariamangalani, and consisting of two villages. The appellants claimed as the heirs of Parthasarathi Pillai upon the death of his widow Alangarammal, which occurred in 1912; alternatively they claimed as the heris of Alangarammal.

The respondent, who was in possession, alleged that the moiety in question had passed under the will of Parthasarathi Pillai to his said widow absolutely, and that she had made a gift of it to the respondents mother, Duraisani; alternatively the respondent relied on the Indian Limitation Act, 1908, alleging adverse possession of the property by her mother from 1896, and after her mothers death in 191] by herself.

The facts appear from the judgment of their Lordships.

The District Judge held that on the construction of the will of Parthasarathi Pillai, his widow took an absolute and not merely a life interest, but that the alleged gift to the respondents mother was not proved, there being no registered instrument to satisfy s. 123 of the Transfer of Property Act, 1882. He further held that the possession of the two villages by the respondents mother had been merely permissive for her mother and aunt (Rajammal and Alangarammal) and not adverse to them. He found that the appellants were entitled as heirs and made a decree in their favour.

Upon an appeal to the High Court the learned judges (Sankaran Nair and Trotter JJ.) differed from one another on the question of limitation. Sankaran Nair J. was of opinion that the petition of October, 1895 (the terms of which sufficiently appear from their Lordships judgment), was not admissible in evidence to prove the nature of the possession held by Duraisani, and that there was no competent evidence to prove that her possession was adverse. Trotter J., on the other hand, was of opinion that the petition was admissible as evidence that the signatories recognized that Duraisanis possession was adverse to their own rights. Upon all other questions in the case both learned judges agreed with the judgment of the District Judge.

The question whether the petition was admissible in evidence for the purpose above stated was referred to a full Bench (Sir James Wallis C.J., Abdur Rahim and Seshagiri Bijyar JJ.) which delivered the following opinion "We think that the petition is not a document requiring registration under s. 17 of the Registration Act. It refers to a gift on October 8, 1895, some days previously, and in spite of the concluding passage, cannot in our opinion be considered, as declaring the rights of the parties within the meaning of s. 17 see Sakharam Krishnaji v. Madan Krishnaji. (( 1881)

I. L. R. 5 B. 232.) It is therefore not rendered inadmissible by s. 49 of the Registration Act."

The appeal then came for disposal before Trotter and Srivivasa Aiyangar JJ., who held that the respondents defence of limitation was established, and accordingly dismissed the suit.

1919. May 12. De Gruyther K.C. and Kenworthy Brown for the appellants. Upon the true construction of the will of Parthasarathi Pillai, his widow took only a life interest in the moiety in suit, and upon her death the appellants succeeded as his heirs. If the widow took an absolute estate, no gift by her to Duraisani was proved since there was no registered instrument to satisfy s. 123 of the Transfer of Property Act. The appellants are therefore entitled as the widows heirs. There was no evidence of adverse possession in Duraisani. The petition of October, 1895, was not admissible in evidence. It declared the title of Duraisani within the meaning of s. 17 of the Registration Act, and being unregistered was, consequently, by s. 49, inadmissible in evidence. At most it could only be e