Ramachandra Iyer, J.-

These appeals arise from the Judgment of Veeraswami, J., setting aside a preliminary decree for partition passed by the lower Courts. One Alangaram Chettiar who has been examined as P.W. 2 in the case had two sons through his wife, Valliammai, Samban Chettiar and Alangaram Chettiar (first defendant). On nth August, 1935, the suit properties were purchased on behalf of Samban Chettiar and Alangaram Chettiar who were then minors. They were represented in the sale transaction by their father. Samban and the first defendant were thus the co-owners of the property. Samban died in the year 1942 and his mother Valliammai succeeded to his share in the property as his heir. It appears from the evidence, that subsequent to the death of Samban the precise date not being ascertainable — the patta for the property was transferred in the name of the first defendant alone. It is now found by all the Courts that Alangaram Chettiar, his wife Valliammai and their son the first defendant were living together and that the property was managed by the first of them. The first defendant attained the age of majority during the year 1950. Almost immediately he alienated the entirety of the properties. Shortly after the alienations were made, the father tried to salvage at least half share of the property by setting up a claim that the properties belonged to the joint family of which he was a member and that the alienation would not be valid beyond the half share that the first defendant had. The claim made by the father however failed as it was found in the litigation the followed that the properties belonged to Samban and the first defendant in their own right and not to the joint family. About two years after the termination of the litigation, Valliammai instituted the suit out of which these appeals arise for a partition of her share of the property from the alienees. According to her, Samban’s half share in the property vested in her on his death and that the first defendant would have no right to sell the property to the prejudice of her interest therein.

Several defences were raised to the suit. It was contended that Valliammai never had a share in the properties as they belonged only to the joint family of Alangara Chettiar and the first defendant. Another and a little more substantial plea was that Valliammai had lost title to her share by adverse possession. The case was that even from the year 1942 the first defendant through his father had prescribed title against his co-sharer.

Both the Courts below had concurrently found that the properties did not belong to the joint family of the first defendant and his father but on the contrary the first defendant and his mother, Valliammai were entitled to the same. This finding was accepted by Veeraswami, J. On the other question of adverse possession, the lower Courts, on a consideration of the evidence, came to the conclusion that there was no proof of ouster of Valliammai by the first defendant and that, therefore, there was no adverse possession. Veeraswami, J., however did not accept that finding as in the view of the learned Judge, the finding should be held to have been vitiated by reason of the fact that the lower Courts overlooked a material evidence in the case, namely, that of Valliammai herself who admitted that she did not enjoy the property or pay kist for the same. Considering the evidence afresh the learned Judge came to the conclusion that the father of the first defendant, acting on his behalf, prescribed adverse title as against Valliammai and that the alienees from the first defendant had acquired full title to the property conveyed. On that finding, the learned Judge set aside the decree of the lower Court and dismissed the suit for partition. The learned Judge however granted leave to the appellant for filing an appeal under clause 15 of the Letters Patent.

Learned counsel for the appellant contends that it was not open to this Court while dealing with a Seco

Click Here to Read the rest of this document