Adverse possess of by co-owners essential.

(16th September, 1949). The plaintiff in O.S. No. 29 of 1944. on the file of the Subordinate Judge of Rajahmundry is the appellant. She is the widow of one Mruthinjaya Rao. She sued for partition and separate possession of her half share in certain immovable properties described in schedule A to the plaint. The 1st defendant is the brother of her deceased husband. Defendants 2 to 4 are the undivided sons of the 1st defendant. Defendants 5 and 6 were made parties because they were in possession of portions of properties having obtained them, in exchange for properties belonging to them. The plaintiff’s case shortly was that the properties in schedule A originally belonged to one Reddi Rama Brahmam and on his death devolved successively on his widow Subbamma and daughter Lakshminarasamma and thereafter on the two sons of the daughter namely, the deceased husband of the plaintiff and the 1st defendant and that the two brothers became entitled to and enjoyed the properties as tenants in common and on the death of her husband his moiety devolved upon her. The contesting defendant was the 1st defendant whose written statement was adopted by his undivided sons, defendants 2 to 4. He denied that items 7, 10 and 11 of schedule A belonged to Rama Brahmam. The other items were admitted to have been inherited by the two brothers but it was pleaded that the two brothers inherited them not as tenants in common but as joint tenants with rights of survivorship inter se. The 1st defendant further stated that these properties were enjoyed jointly along with their joint family properties without any distinction and that, therefore, on the death of the plaintiff’s husband the 1st defendant became entitled to the entire interest in the properties. It was also pleaded that the plaintiff’s rights, even if there be any, were barred by adverse possession of the 1st defendant. The learned Subordinate Judge held that items 7, 10 and 11 of schedule A did not form part of Rama Brahmam’s estate and that even in respect of items which formed part of that estate, the plaintiff was not entitled to any relief on two grounds, namely (1) that the plaintiff’s husband and the 1st defendant took their maternal grandfather’s properties not as tenants in common but as joint tenants with right of survivorship and (2) that the suit was barred by time and the 1st defendant had acquired title by adverse possession against the plaintiff. So far as the actual enjoyment was concerned, the learned Judge held that there was nothing decisive either way and it was consistent either with tenancy in common or joint tenancy. On these findings he dismissed the suit.

The main and most important question which falls for decision in this appeal is whether the properties which belonged to Rama Brahmam were inherited by the plaintiff’s husband and his brother the 1st defendant as tenants in common or as joint tenants with right of survivorship. According to Hindu law this question must ultimately be decided by determining the nature and character of the property-taken by them in their hands. It is common ground that they took them as the heirs of their maternal grandfather.

It is also common ground that the two brothers were members of an undivided Hindu family. The learned Subordinate Judge held that the case was directly governed by the ruling of the Privy Council in Venkayamma Garu v. Venkataramanayamma Bahadur Garu1, where it was held that the rule of survivorship would apply to the property inherited by two brothers from their maternal grandfather when they were members of an undivided Hindu family and when they were sons by the same daughter of the propositus. This is undoubtedly so. The appellant’s learned counsel therefore, instead of distinguishing the case in vain, took the straight course of trying to get rid of the decision altogether. This obviously he could not do with the limitations of this Court by attacking the correctness of the decision as if this Court could p