Calculation of period for adverse possession.

This second appeal is by the first defendant. The suit for declaration and injunction was dismissed by the trial court, but the appellate court decreed it.

2 The two plaintiffs filed the suit alleging as follows:

The suit properties belonged to the joint family of the fifth defendant and his sons-the plaintiffs, and they (plaintiffs) are now in possession of it. When the first plaintiff on 29. 1981 went to plough the suit property the first defendant and his three-brothers-defendants 2 to 4 obstructed. It appears the fifth defendant had executed a gift deed on 4. 1972 in respect of this property in favour of his brother’s sons Madhiyazhagan and Vijayaseelan. This gift deed is void and of no effect. The said settlees appears to have executed a sale deed on 212. 1975 in favour of the first defendant. The gift deed being void and of no effect the first defendant will not get any title under the sale deed dated 212. 1975. Therefore the suit is for declaration of the plaintiffs title to the suit property and for injunction restraining the defendants from interfering with their possession.

3. The defendants 1 to 4 in their written statement contended that the fifth defendant executed the gift deed as the Joint family manager and therefore it is quite valid and effective. The plaintiffs by their subsequent conduct have consented to the said transaction. The plaintiffs claim that they are in possession is not true and it is only the first defendant who is in occupation of it, and even before the sale in his favour he was in possession under a usufructuary mortgage executed by the settlees in his favour in 1975. Therefore the first defendant is the absolute owner of the suit property by his purchase from the settlees on 2212.1975. In a prior suit O.S.No.284 of 1975 between the first defendant and the fifth defendant his title has been Upheld. Therefore the plaintiffs are not entitled to any relief prayed for.

4. The trial court after framing issues, considering the evidence adduced in the case, held that the gift deed Ex.A-1 dated 4. 1972 executed by the fifth defendant in favour of his brother’s sons is quite valid and they having executed a sale deed Ex.B-2 dated 212. 1975 in favour of the first defendant and the first defendant has title to the property. It further held that the first defendant is in possession of the property. On these grounds the trial court dismissed the suit.

5. On appeal the appellate court disagreeing with the findings of the trial court held that the gift deed having been executed by the fifth defendant in respect of the joint family property, even though the fifth defendant was the manager, is not valid in law and therefore no title passed under it to Madhiyazhagan and Vijayaseelan, and hence they could not pass any title to the first defendant under the sale deed Ex.B-2. On these findings the appellate court set aside the judgment and decree of the trial court and decreed the suit as prayed for.

6. In the second appeal, it is contended that the finding of the appellate court that the gift deed is invalid in law is erroneous, and in any case it will be valid atleast in respect of the fifth defendant’s 1/ 3 share in it.

7. The appellate court has referred to some of the judgments of the Supreme Court and this Court which are to the effect that a coparcener even if he is the joint family manager has no right to execute a gift deed in respect of the joint family property and such a gift deed is void ab initio. In the Division Bench case in Rayakkal v. Subbanna, I.L.R 16 Mad. 84, a Hindu, during the infancy of his son conveyed certain immoveable ancestral property to his wife and married daughters by way of gift. After his death the son sued by his next friend to have these alienations set aside and to recover the property. It was held that the alienations should be set aside together. In another later Judgment of a Division Bench of this Court in S.V.Sundaresan v. Assistant Controller of Estate D