Kanapathipillai V. Meerasaibo

1956 Present: Sansoni, J., and H. N. G. Fernando, J.

M. KANAPATHIPILLAI, Appellant, and M. MEERASAIBO et al., Respondents

S. C. 168-D. C. Batticaloa, 753/L

Co-owners-Prescription-Transfer of entire land by a co-owner-Transferee's right to prescribe against the other co-owners-Ouster.

When a co-owner conveys the entire land held in. common to a stranger and the latter is aware, at the time he obtains the conveyance, that his vendor is only a co-owner and not the sole owner of the land, prescription will begin to run in the purchaser's favour against the the other co-owners only if there has been an ouster or its equivalent.

APPEAL from a judgment of the District Court, Batticaloa.

G. Ranganathan, with P. Naguleswaram, for the plaintiff appellant

G. F. Sethukavalar, for the defendants respondents.

Cur. adv. vult.

February 27, 1956. SANSONI, J.-

The land in dispute in this case formerly belonged to Sinnaver Kanepathi who died about the year 1934. She had two sons Kannappan and Eliathamby. Kannappan pre-deceased his mother and his share devolved on his four children Ponnamma, Purannam, Nagamma and Katpagam, each of whom became entitled to share. Katpagam died leaving her husband Arulanantham and two children, the 2nd and 3rd defendants. Arulanantham transferred his share to the 5th defendant who thus became entitled to l/16th share. Ponnamma, Nagamma, and Purannam transferred then interests to the plaintiff who thus became entitled to 6 /16th share.

The other 1/2 share owner Eliathamby mortgaged his | share to one Thambiayah by deed 1D3 of 1938. The mortgagee put the bond in suit, and according to the mortgage decree which was entered in 1940, that 1/2| share became liable to be sold in default of payment of the debt. In 1941 by deed P5 Eliathamby purported to sell the entire land to Thambiayah for Rs. 100, out of which Rs. 70 was set off against the debt due under the mortgage decree. In 1944 by deed P6 Thambiayah purported to sell the entire land for a sum of Rs. 500 to the 1st defendant.

The 1st defendant claimed the entire land and denied that the plaintiff had any right to bring this partition action.

The learned District Judge held that Eliathamby possessed the entire land exclusively after the death of Kanepathi and that the 1st defendant had acquired a prescriptive title to the entire land as the heirs of Kannappan did not exercise any rights of possession. Seeing that Eliathamby and the heirs of Kannappan were co-heirs in respect of this land, something very much more than mere possession by Eliathamby was necessary to give him a starting point for acquiring a prescriptive title to this land. In any event, he had only seven years possession at the time he transferred the entire land to Thambiayah. But for one circumstance, it might have been argued that since Thambiayah was a stranger who entered into possession of the entire land upon a deed which purported to convey to him the entirety, although his vendor had title only to half-share, Thambiayah's possession of the entire land was adverse to the other co-owners ; and since ten years had elapsed between the date of his purchase and the bringing of this action, the 1st defendant by tacking on Thambiayah's possession to his own acquired a prescriptive title to the entire land. The circumstance which precludes the 1st defendant from relying on the possession of Thambiayah is that Thambiayah was aware, when he bought the entire land in 1941, that he was buying from one who owned only a half-share.

The rule is well settled that when a co-owner conveys the entire land held in common to a stranger, and the latter enters into possession of the entire land under the conveyance, he can, by possession adverse to all the co-owners for ten years, acquire a prescriptive title. But where such a stranger is aware, at the time he obtains the conveyance, that his vendor was only a co-owner and

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