N. Varada Pillai vs Jeevarathnammal on 20 June, 1919
In Alagiri Chetty v. Muthuswami Chetty (1940) 50 L.W. 571, this question pointedly arose and my learned brother Patanjali Sastri, J., took the view that the principle of the decision in Varada Pillai v. Jeevarathnammal (1919) 38 M.L.J. 313 : L.R. 46 I.A. 285 : I.L.R. 43 Mad. 244 (P.C.), would apply to it. In that case there were two brothers, Servaraya Chetti and Alagiri Chetti. Servaraya died in 1891 leaving him surviving his widow who also died in the same year. Alagiri was therefore the person who became entitled to the property. But on the date of the death of the widow, one of the sons of Alagiri (Alagiri had five sons) was in possession of the house and continued to be in sole possession thereof until the date of Alagiri's death in 1900. The plaintiffs who were the grandsons of Alagiri by two of his sons Annasami and Kandasami sued to recover the share of their fathers. The first respondent resisted the claim on the ground of limitation and his plea was upheld on the ground that under Article 141 of the Limitation Act the suit should have been filed within twelve years from the date of the widow's death. It would seem to me that prima facie on the death of Alagiri Chetti the property having vested in all the heirs of Alagiri Chetti as tenants in common the adverse possession which was running against Alagiri Chetti must be deemed to have come to an end. In the case of a tenancy in common each tenant has the entire possession as well of every part as of the whole. It cannot be said that one tenant in common who is in possession of the property can be held to be exclusively in possession of that whole because the principle is each has got an undivided moiety of the whole and not the whole of the undivided moiety. Therefore on the death of Alagiri Chetty all the heirs became entitled to the property and there was thus unity of title. The question is whether there was unity of possession. It cannot be denied that so far as possession of the first respondent was concerned, he cannot be said to be holding adversely to himself in respect of any portion of the property because the character of possession must necessarily change in consequence of the vesting in himself as part owner. As the possession of one tenant in common is prima facie possession of the other, the possession therefore of the first respondent must only be held to be adverse after the date of the death of Alagiri. There must be distinct evidence of ouster after that date because it cannot be said that at the moment of vesting there was ouster. In order to constitute ouster, there must be assertion of a hostile title after vesting and notice thereof to the other co-heirs, direct or indirect, inferable from acts and circumstances which would warrant such an inference. It may be possible for the Court to infer that the possession of the first respondent from the date of the death of Alagiri cannot be said to be on behalf of all the heirs of Alagiri having regard to the prior hostile possession of the first respondent.