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IN THE HIGH COURT OF MADRAS FULL BENCH
Alfred Henry Lionel Leach, C.J.
T.P.R. Palania Pillai died and Ors.
Versus
Amjath Ibrahim Rowther and Anr.
Decided On : 06.07.1942
Adverse Possession - Co-ownership - Limitation Act - Article 144 - Usufructuary Mortgage - Adverse Possession Commences from Date of Ouster to Knowledge - Acts and Sections: Limitation Act, Article 144 - Summary: The court discussed the conflict of authority on the question of adverse possession and the necessity of proving knowledge of adverse possession by co-owners. The majority view supported the commencement of adverse possession from the date of ouster to the knowledge of other co-owners. The court also referred to the Limitation Act, Article 144, and emphasized the requirements of continuity, publicity, and extent for adverse possession. The decisions in Muthukrishna Aiyangar v. Sankaranarayana Aiyar, Ramachandra Deo v. Balaji, Venkatarama Aiyar v. Subramania Sastri, Moidin v. Kunhalikutti, and Govindaswami Chettiar v. Kothandapani Chettiar indicating a contrary opinion were deemed to be overruled.
Fact of the Case:
The suit involved a dispute over the partition of properties held in common by two brothers and the shares of their respective heirs. One of the questions in the suit was whether a usufructuary mortgage created by some co-owners was binding on the plaintiffs.
Finding of the Court:
The court found that adverse possession commences from the date of ouster to the knowledge of other co-owners, and the suit was not barred by the law of limitation.
Issues: The main issue was whether the suit for partition and shares in the properties was barred by the law of limitation due to a usufructuary mortgage created by some co-owners.
Ratio Decidendi: The court held that adverse possession must be proved to have commenced from the date of ouster to the knowledge of other co-owners, and the suit was not barred by the law of limitation.
Final Decision: The court ruled in favor of the plaintiffs, holding that the suit for partition and shares in the properties was not barred by the law of limitation.
Alfred Henry Lionel Leach, C.J.
1. One A. A. Mohamed Madar Rowther and his brother A. A. Mohamed Meeran Rowther held their properties in common. Mohamed Madar was married twice. His first wife predeceased him. By her he had a son and a daughter, who are the 1st and 2nd defendants respectively. His second wife is the 2nd plaintiff and by her he had a son, the 1st plaintiff. Mohamed Madar died on the 18th June, 1916. The date of the death of his brother Mohamed Meeran is not known, but it is known that he died before his elder brother. Mohamed Meeran was survived by his wife (the 5th defendant) and two sons (the 3rd and 4th defendants). The widow and the son of Mohamed Madar filed this suit for partition of the properties of the two brothers and for their shares in Mohamed Madars properties. One of the questions in the suit was whether a usufructuary mortgage created by the 1st and 3rd defendants in favour of the 8th defendant was binding on the plaintiffs. This mortgage was created on the 28th August, 1920,, and the mortgagors purported to charge the whole of items 10 to 13 and part of item 9 of the second schedule to the plaint. The amount which had been advanced on the security of these properties was Rs. 7,250. The plaintiffs case was that they were co-sharers and the 1st and 3rd defendants had no right to charge their interests in these properties. The suit was not filed until the 9th October, 1937 and the 8th defendant pleaded that so far as his mortgage was concerned the. suit was barred by the law of limitation. The plaintiffs maintained that they had no knowledge of this mortgage and that limitation could not commence to run until they had acquired knowledge of it. It is common ground that they acquired knowledge within twelve years of the suit.
2. There is a conflict of authority in this Court on the question whether it is necessary in order to support a plea of adverse possession that knowledge of adverse possession must be proved. The appeal came in the first instance before King, J., and in view of this conflict he has referred to a Full Bench the following question:
Where some co-owners usufruetuarily mortgage specific items of property held by the members of a Mohammadan family and the mortgagee enters into possession of the mortgaged items under his mortgage deed, is a suit to recover the share therein by other members of the same family barred by article 144 of the Limitation Act at the end of twelve years of such possession or does adverse possession begin as against the other members only from the date of ouster to their knowledge?
The weight of authority in this Court is in favour of an affirmative answer being given to the first part of the question. There are decisions of the Calcutta and Bombay High Courts to the same effect, and support for the majority view is also to be obtained from the decision of the Privy Council in Secretary of State for India in Council v. Debmdra Lal Khan (1933) 66 M.L.J. 134 : L.R. 61 IndAp 78 : I.L.R. 61 Cal. 262 (P.C.).
3. In Sheik Abdul Gagur v. Ashamath Bibi (1919) 11 L.W. 31. a Bench of this Court (Seshagiri Aiyar and Moore, JJ.) held that possession of an alienee from one of several co-tenants becomes adverse as against the other co-tenants from the moment of the entry into-possession by the alienee. This judgment was based on the decisions of this Court in Secretary of State v. Vira Rayan I.L.R. (1885) Mad. 175. and Muthusami v. Ramakrishnal I.L.R. (1889) Mad. 292. and the judgment of the Full Bench of the Bombay High Court which decided Bhavrao v. Rakhmin I.L.R. (1898) Bom. 137. and the judgment of the Bench of the Calcutta High Court which decided Jogendra Nath Rai v. Baladeo Das I.L.R. (1907) Cal. 961. In Secretary of State v. Vira Rayan, I.L.R. (1885) Mad. 175. Turner, C.J. and Muttuswami Aiyar, J., held that the ignorance of the owner would not prevent the accrual of title by prescription and in Muttusami v. Ramakrishna I.L.R. (1889) Mad. 292. Muttuswami Aiyar, J
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