Swamidurai, J.@mdashThe second defendant in O.S. No. 130 of 1980 on the file of the learned Second Additional Subordinate Judge,
Pondicherry, is the appellant. Plaintiffs 1 to 5 are the respondents. The suit is for partition and separate possession of 1/4th share in the suit
properties and for future mesne profits in the 1/4th share. The case of the plaintiffs briefly stated is as follows: The suit properties in Setharapattu
village were purchased by Doraisami Naidu and Chinnasamy Naidu under a registered sale deed dated 21.10.1982. By reason of that sale deed,
they became entitled each to an undivided half share in the properties. Duraisami Naidu died in 1944 leaving behind him his two daughters, namely
Meenakshiammal (D-1) and Jayalakshmiammal who is now dead. Duraisami''s wife predeceased him and so Duraisami''s half share was inherited
by the abovesaid two daughters and they were in possession of the properties along with Ramachandra Naidu (D-2) son of late Chinnasami
Naidu. Jayalakshmi''s husband is Seshachala Naidu (first plaintiff) and their sons and daughters arc the plaintiffs 2 to 5 herein. The first defendant
and Jayalakshmiam exclusively. The defendants are entitled to 3/4th share while the plaintiffs branch is entitled to 1/4th share. The share of
Duraisami Naidu was taken by his two daughters. Hence the suit.
2. The first defendant in her written statement contended as follows: The suit properties absolutely belong to the second defendant herein and the
plaintiffs can have no right over the same. The properties were purchased by Chinnasami Naidu and he was in possession of the same absolutely
till his life time and after his death, the property came into the hands of the second defendant as the sole heir of Chinnasami Naidu. From the year
1949 till the date of filing of the written statement, the properties were under the ownership and enjoyment of the second defendant. The first
defendant is not entitled to any possession over the suit properties. The second defendant effected partition of all his properties among his sons and
his respective shares are in possession and enjoyment of the respective parties. Hence the first defendant submits that the suit may be dismissed.
3. The second defendant filed a written statement separately contending as follows: The father of the second defendant Chinnasami Naidu had both
ancestral and self-acquired properties. He had three daughters by name Lakshmi Ammal, Mottai Ammal and Adhi Lakshmi and one son, namely
the second defendant. Duraisami and his sister Muthulakshmi (mother of the second defendant) belonged to Avanipuram, a village near Tindi-
vanam which is about 35 miles away from Sedarapattu village. The family of Muthulakshmi and Duraiswamy owned about 3 acres of land. There
was no appreciable income from those lands. When Duraisami Naidu gave his eldest sister in marriage to the said Chinnasami, the latter wanted to
see that the said Duraiswamy continued to live under his patronage in Sedarapattu village itself. Doraisami married the daughter of Chinnaswami.
Chinnasami Naidu had also bulls so as to enable Duraiswamy to make a living out of itapart from his negligible agricultural income. The two other
daughters of Chinnasamy Naidu, Mottai Ammal and Adilakshmi were married into families which were sufficiently affluent and Chinnasamy Naidu
had nothing to worry about them. In the circumstances, with a view to see that Duraiswamy did not leave the family, Chinnasamy Naidu purchased
the suit properties under registered sale deed dated 21.10.1922 in his name and in the name of the said Duraiswamy. The entire sale consideration
was paid by Chinnasami Naidu himself. No part of the sale consideration came from the said Duraiswamy. There was no intention at the time of
the said purchase by the said Chinnasami Naidu that the said Duraiswamy should have any beneficial interest in the said property. It is significant to
note that the said Duraisami himself was not aware of the purchase. Doraisami had no money at all to pay any portion of the sale consideration.
The original sale deed was in the custody of Chinnasami Naidu till his life time and after his death on 6.10.1949, thesecond defendant was in
possession as the sole heir of the said Chinnasamy Naidu. Chinnasami Naidu and later, the second defendant alone had paid the kists. Neither
Doraisami Naidii nor his heirs were even in possession of the suit properties. Nor did they get any income from the same. Doraisami Naidu died in
1944 and after his death till about 1949, the second defendant''s father was looking after the family of Doraisami. After 1949, the second
defendant as the sole heir of Chinnasamy Naidu became entitled to the suit properties of Chinnasamy Naidu and is in absolute possession and
enjoyment of all the properties. Soon after the death of Duraisami, his widow Lakshmi also died in March, 1947 leaving behind her two daughters
Meenakshi (D-1) and Jayalakshmi. The second defendant married Meenakshi in the year 1951-52. Jayalakshmi was married to Seshachala Naidu
(first plaintiff) in or about 1958. Jayalakshmi died on 22.8.1965 leaving behind her husband, the first plaintiff and three sons, the2nd, 3rd and 5th
plaintiffs and daughter the 4th plaintiff.
4. The second defendant had applied for licence in 1956 for erection of a rice mill in the property bearing No. 51 Bis. The concerned authorities
had made publication of the said application for establishing a rice mill and called for objections by publication made in the Gazette of Pondicherry
dated 14.8.1956. After considering the objections, the concerned authority has passed the order dated 12.3.1957 granting necessary licence over
the land in 51 Bis. for erection of a rice mill and ever since 1957, the second defendant as the absolute owner of the land on which the rice mill
stands, is carrying on his rice mill business openly and uninterruptedly to the knowledge of the plaintiffs. The second defendant submits that in
respect of the suit properties and also some other properties, he has applied and obtained loans from the Land Mortgage Bank, Pondicherry as
early as in February, 1969. The department had an occasion to scrutinise the title deeds of the properties offered as security and after that they
have sanctioned the Joan No. 531 for a sum of Rs. 15,000on the security of the land. Major portion of the loan has been now repaid. The second
defendant has also dealt with the suit properties as his own. The plaintiffs have been totally and completely ousted from the suit properties and do
not have even a shadow of right over the suit properties. After the death of Chinnasami in October, 1949, the suit properties have been included in
the separate patta of the second defendant. By virtue of the application for licence to run the rice mill and the grant of licence for running the rice
mill and the actual running of the rice mill for more than 20 years and also of the securing of a loan from the Land Mortgage Bank, Pondicherry on
the security of the property, the worth of which has been tested legally, the plaintiffs must be deemed to have had constructive notice of these overt
acts and their rights if any must be deemed to have been extinguished and ousted. In the circumstances, the second defendant has also prescribed
title to the suit properties by adverse possession also. Duraisami did not have any interest over the suit properties. Neither the first defendant nor
Jayalakshmi was entitled to any share in the suit property as the same belonged absolutely to Chinnasami and after his death, it became the
property of the second defendant. Duraisami was never a co-owner in respect of the property and much less the plaintiffs. There is no question of
the plaintiffs ever having allowed the second defendant in management of the suit properties. Duraisami had never paid kists for the suit properties.
Chinnasami Naidu and the second defendant alone had been regularly paying the kists. The plaintiffs are not entitled to the suit properties nor were
they paid any portion of the income from the suit properties as claimed by them. In 1970, the second defendant had effected partition of all his
properties among his sons born to his first wife Ncelambal and also to the children born to the second wife Meenakshi (D-1) and necessary
transfers of patta have already been effected and the respective sharers are in possession and enjoyment of the respective properties. The present
suit without making these persons as Parties to the suit, is bad for non-joinder. Hence the suit as against the second defendant has to be dismissed.
5. The trial court framed the following issues:
1. Whether Chinnasamy Naidu purchased the suit property in his nameand in the name of his son-in-law, Duraiswamy Naidu just to help him to
reside at Scdurapet? If so whether the entire sale consideration of thesale deed dated 21.10.1992 was paid only by the said Chinnasamy Naidu?
2. If so whether Duraiswamy Naidu has no share or interest over the suit property?
3. Whether during the life time of Duraiswamy, he was in joint possession of suit property along with D-2. If so whether he paid kist and received
portion of income deriving from the property?
4. Whether Chinnasamy Naidu was in exclusive possession and enjoyment of the suit property till his death and after him D-2 is in exclusive
possession of properly?
5. Whether D-2 has prescribed title over the suit property by adverse possession of more than 20 years?
6. Whether the plaintiffs are entitled to 1/4th share of Jayalakshmi Ammal and separate possession?
7. To what other relief if any the plaintiffs are entitled?
6. The plaintiffs have examined P.Ws. 1 to 7 and marked Exs. A-1 to A-17 and the defendants have examined D.Ws. 1 to 6 and marked Exs. B-
1 to B20. The trial court found on issue No. l that the entire sale consideration was not paid by Chinnasamy Naidu. Under issue No. 2 the trial
court found that Duraiswamy Naidu has a half right in the properties purchased under Ex. B-2. On issue No. 3 the trial court found that Duraisami
Naidu was in joint possession of the suit properties and that he has paid kists and received his share of the income. On issue No. 4, the trial court
found that Chinnasamy Naidu was not in exclusive possession and enjoyment and that the second defendant was not in exclusive possession of the
properties. Under issue No. 5, the trial court found that the second defendant has not prelected absolute title over the suit properties by adverse
possession. Under issue No. 6 the trial court held that the plaintiffs are entitled to 1/4th share in the suit properties. The trial court also found that
the suit is not bad for non-joinder of the sons of the second defendant. Ultimately, the trial court held that the plaintiffs are entitled to get all the
reliefs as prayed for and therefore, granted a preliminary decree for partition and separate possession of the plaintiffs 1/4th share in the suit
properties with costs.
7. Mr. K. Sampath, learned Senior Counsel for the respondents contended that under the Benami Prohibition Act the plea of the defendants that
even the sale deed in respect of the suit properties was obtained as early as on 21.10.1922 in the name of Doraisami and Chinnasami, Chinnasami
Naidu alone was entitled to thesuit properties absolutely and on his death, the second defendant became entitled to suit properties absolutely, is not
tenable. Mr. G. Masilamani, learned Senior Counsel for the appellants submitted that in view of the prohibition under the above said Act, the plea
that the suit properties belonged to Chinnasami Naidu absolutely, cannot be put forth now and so I have to accept the contention of Mr. K.
Sampath learned Counsel for the appellants that the properties belonged to Duraisami and Chinnasami in view of the sale deed dated 21.10.1922
under Ex. B-2 standing in the names of both.
8. The points for consideration in this appeal are, (i) whether the suit properties have been possessed and enjoyed absolutely by Chinnasami and
after his death by the second defendant only and whether Duraisami and after him his daughters Meenakshi and Jayalakshmi and after
Jayalakshmi''s death the plaintiffs have been in possession and enjoyment of the suit properties jointly along with Chinnasamyand the second
defendant, (ii) whether Jayalakshmi on her death the plaintiffs had received their share in the mesne profits and whether they have entrusted the
management with the second defendant, and (iii) whether the second defendant has prefected title by adverse possession and prescription over the
suit properties lot over the statutory period?
9. Duraisami Naidu died in the year 1944. Ex. A-17 kist receipts disclose payment of tax for the suit properties and other properties also. The
case of the first appellant Ramachandran Naidu is that his father (Chinnasami) paid kists through the deceased Doraisami and so that Ex. A-17
series could not be considered as relevant facts for deciding the issue of possession of the suit land by Doraisami. Ex. B-7 arc tax receipts from
1926 to 1965 and they were in possession of Chinnasami Naidu and they were marked by the second defendant. Mr. K. Sampath, learned Senior
counsel for the respondents relied upon Ex. A-16 letter dated 23.10.1959 said to have been written by Meenakshi (D-1). But the first defendant
denied that she has written that letter and also she denied her signature in the same. The said letter was addressed to one Narayanasami, husband
of Jayalakshmi. The said Narayanasami was not examined by the respondents to show that he received that letter. Therefore Mr. G. Masilamani,
learned Senior Counsel contended that Ex. A-16 cannot be relied upon for any purpose. Ex. A-16 was produced by the respondents herein for
the purpose to show that Jayalakshmi had received her share of the mesne profits from the suit land. Mr. G. Masilamani, learned Senior counsel,
for the appellants contended that the various documents filed by the first appellant would clearly establish that he had been in absolute possession
of the suit properties in his own right and that the appellants had prescribed title by adverse possession. The licence for establishing a rice mill after
calling for the objections by publication made in the Gazette of Pondicherry dated 16.5.1966 and the issue of licence under letter dated
23.10.1959 and the mortgages by the appellant would all clinchingly prove that the first appellants had alone been in possession and enjoyment of
the suit properties in continuation of the possession and enjoyment of his father late Chinnasami Naidu. All these documents and the oral evidence
let in by the appellants would also clearly prove that there are open assertion and hostile title against the exclusive possession and management of
the appellant to the knowledge of the respondents and therefore, according to the appellants, the same constitute ouster. Reliance was also placed
on Exs. B-1, B-10 and B-11 by the appellant. Ex. B-1 is the partition deed executed by the appellant among the members and thereby he had
parted away portions of properties to his children and therefore, learned Counsel for the appellants strenuously contended that on a consideration
of these facts and documents there has ascertain of hostile title on the part of the appellant to the knowledge of the plaintiffs/respondents in respect
of the entire suit properties. He pointed out that the lower court erred in giving a finding that the first defendant/6th respondent herein obtained loan
for improving the lands and for agricultural purposes. According to him, the court below ought to have considered that the abovesaid loans were
taken not on the security of the suit lands and similar loans were given to the first wife (Neelambal) of the appellant also. Learned Counsel for the
appellants has also pointed out that from the evidence of D.Ws. 3 to 5 it is clear that the 1st appellant had created certain mortgages on his
individual capacity in respect of portions of the suit property. No doubt, patta has not been issued in favour of the 1st appellant or other members
of his family in respect of the suit properties. It is the case of the appellants that in view of the partition deed Ex. B-1, 20.3.1970 executed by the
appellant along with his family members, the suit properties are in possession of various parties and chose parties are necessary and proper parties
to the suit and that the suit is bad for non-joinder of proper parties. According to the appellants, those parties are in possession of the suit
properties at present. The appellant has also submitted that the lower court has wrongly awarded future mesne profits when the
respondents/plaintiffs have not paid any court fee for the same. Mr. G. Masilamani, learned senior advocate for the appellants took me through the
entire oral evidence let in by both the parties. Admittedly, the plaintiffs are living in another village; whereas the suit properties are situated in
Setharapattu village where the 1st appellant''s father Chinnasami had been living. Therefore, Mr. G. Masilamani, learned senior counsel for the
appellants contended that it was not possible for the respondents or late Jayalakshmi to enjoy the suit properties jointly and that there is no
acceptable evidence to show that Chinnasami or the second defendant were in possession of the suit properties forand on behalf of Jayalakshmi at
any point of time. According to him, the-only evidence let in on the side of the respondents is Ex. A-16 to show that Jayalakshmi had obtained a
share from the income from the suit properties. As referred to above, the first defendant, who is stated to be the author of letter Ex. A-16 denied
that she had ever written the said letter to Jayalakshmi and she had not signed the same. Mr. G. Masilamani, learned Senior Advocate took me
through the signatures found in Ex. A-16 and also the admitted signatures of the first defendant in vakalat, written statement and in the deposition
as D.W. 1. No doubt, there is discrepancy in the signature found in Ex. A-16 and the admitted signatures of the first defendant in the vakalat,
written statement and also in her deposition as D.W. 1. For this, Mr. K. Sampath, learned senior counsel for the respondents contended that it is
usual in the villages that a party would write letters to another party and that the scribe of that letter would use the name of the author of that letter
and send it to the addressee. In such a case, the name of the first defendant in Ex. A-16 might have been written by the scribe of the letter itself.
But the contents of that letter Ex. A-16, according to him, has to be accepted in view of the evidence let in by the second defendant. The first
defendant also had obtained agricultural loans. The first defendant has filed for short term loans on eight occasions, middle term loans on two
occasions and the loans were given to the first defendant for agricultural expenses. The first defendant being the daughter of Duraisami Naidu, has
been described so in the loan ledgers. The case of the plaintiffs is that since the first defendant inherited the property of Duraisami, she has been
described as such in the loan ledgers. Mr. G. Masilamani, learned Senior Counsel for the appellants has submitted that the suit is barred by
limitation in view of Rule 2262 of French Code Civil applicable to Pondicherry. The said rule reads as follows:
2262. All rights of action whether in rem or in personam are extinguished by prescription after thirty years. The person who sets up a title by
prescription for thirty years is not obliged to rely on any title; nor can a plea alleging bad faith be set up C.706, 2229, 2249, 2263, 2268, 2274;
Pr. 397 and following.
According to him, Duraisami Naidu died in 1944 and Jayalakshmi died in 1965. On the death of Duraisami Naidu in 1994 even assuming without
admitting that Jayalakshmi gets a right through whom the plaintiffs are now claiming, the suit should have been filed before 1974. Since the suit was
not filed within 30 years from the dateof death of Doraisami Naidu, the suit is barred by limitation. Mr. K. Sampath, learned Senior counsel
appearing for the respondents relied upon various judgments of this Court and the other courts which are mentioned below for the proposition that
regarding the co-owners, there should be complete ouster and also followed by oral and documentary evidence in support of ouster and claim of
adverse possession for over 30 years. According to him, Jayalakshmi died in 1965 and that till her death, she had been getting her share of the
income from the suit properties and the suit filed by the plaintiff in 1980 is not barred by limitation, taking into consideration the date of death of
Jayalakshmi in the year 1965. There is evidence to show in this case that Jayalakshmi was getting her share in the suit properties and so that it can
be held that Jayalakshmi was getting her share of the income till her death and so that adverse possession cannot be countenanced from 1944
onwards since Jayalakshmi died in the year 1965. The suit was filed in 1980 and so that it cannot be stated as contended by the learned Counsel
for the appellants that the suit is barred by limitation.
10. P.W. 1 in cross-examination has stated that Meenakshi and Jayalakshmi were given income from the property. It is also his evidence that the
first defendant had paid a sum of Rs. 200 by way of rent every year till the death of Jayalakshmi. P.W. 2 Balabaskaran has deposed that the first
defendant had taken a loan of Rs. 500 from the Co-operative Society at Setharapattu under Ex. A-1. Ex. A-2 is the admission register, Ex. A-3 is
the loan register. The first defendant had also taken loan of Rs. 1,000 from the State Co-operative Bank. According to the defendants, the loan
obtained by the first defendant were advanced on the security given by some other members as deposed by P.W. 2 in his cross-examination. But
at the same time, the witness is not able to say whether the property statement was filed by the first defendant or not when she obtained the loan
from the State Co-operative Bank. P.W. 3 K.Ranganathan is an Advocate-Commissioner. Ex. A-5 is the Commission Warrant issued by the
Court dated 16.7.1980. He has noted casuarina trees as the 5th item of the grinding engine etc. in his report. He has also noted the income from
the coconut trees in the suit property at Rs. 12,000 Ex. A-6 is the interim report. Ex. A-7 is the final report. P.W. 4 V. Ramamurthy is a
Cooperative Sub-Registrar-in-charge of Liquidation Officer. He could not produce any records as he did not know whether the records were
available in the Co-operative Bank. He has stated that he would search for the documents and would produce them within 15 days and therefore,
his evidence, is not useful. P.W. 5 is none other than P.W. 1. It is the evidence of P.W. 1 (P.W. 5) that the first defendant was paying Rs. 200
every year to Jayalakshmi from the income. P.W. 5 Duraisami has stated that he was working in the office of the Registrar of Co-operative
Societies. His evidence is that the loans mentioned in Ex. A-13 are personal loans not issued under mortgage. P.W. 7 is the plaintiff himself. It is his
evidence that the first defendant had given their shares of the income in the property. He has deposed about the inland letter Ex. A-16 which,
according to him, was sent by the first defendant to his father Narayanasami Naidu. According to him, till 1978 they had been paying their shares
from the income. His evidence is that the first defendant had given as security her 1/4th share in the property to Setharapattu Society for having
raised the loan and the other 1/4th share belonged to Jayalakshmi. He has admitted that neither he nor his wife did reside at Setharapattu after
marriage. He has also admitted that from 1958 the first defendant had been cultivating the land. He denied the suggestion that Ex. A-16 was not
written and signed by the first defendant. He has also denied the suggestion that they have not claimed any share of the income from the suit
property for the past 30 years. According to him, the first defendant had availed loan from the Cooperative Society for agricultural purposes and
for improvement of the loan. The defendants had not produced the application for obtaining the loan from the said society by the first defendant. In
the application, the purpose of the loan would be mentioned. But the 1st appellant has not produced the same for the reasons best known to him.
11. Mr. K. Sampath, learned Senior Counsel for the respondents, pointed out certain portions from the evidence of Meenakshi P.W. 1 to show
that there were casuarina trees in the suit properties and the same was sold to certain person. Even in Ex. A-16, there is a reference with regard to
casuarina plantation. Therefore, Mr. K. Sampath, learned Senior counsel submitted that Ex. A-16 was written and signed by the first defendant
herself. But Mr. G. Masilamani, learned Senior counsel for the appellants pointed out that Narayanaswami Naidu, the addressee of Ex. A-16 was
not examined to show that he had received the said letter. He has also pointed out that variations in the signature alleged to be that of the first
defendant and on the admitted signatures of the first defendant in vakalat, deposition and written statement. But at the same time, Ex. A-16 cannot
be fabricated now at this distance of time. Therefore, it is possible that the first defendant could have sent Ex. A-16 to Narayanasami Naidu. D.W.
6 Deivasigamani, Revenue Inspector-incharge of revenue records, measurement reports and boundary statements. He has produced Ex. B-9 to
show the actual measurement of the suit properties. As per Ex. P-10 all the suit properties are in the name of the second defendant. But he has
stated in cross-examination that he did not know as to whether patta came to be issued in the name of the second defendant. D.W. 5 Rajaramanis
the village karnam of Setharapattu village. His evidence is that the property in R.S. No. 80/2 part stands in the name of Pasupathy, son of
Ramachandra Naidu the second defendant in the chitta. Even before 1974, the properties in S. Nos. 80/4 and 80/3 stood in the nameof the
second defendant. Exs. B-16 and B-17 are the adangal registers. Ex. B-18, Exs. B-19 and B-20 are the true copies of the adangal for the year
1978 to 1990.
12. Mr. K. Sampath, learned senior counsel appearing for the respondents relied upon the judgment reported in Meherwan Jehangir v. Dhunbhai
Kavasha Mistri (1949) 1 M.L.J. 913, wherein this Court held as follows:
It is well established that the mere non-receipt by one co-owner of a share in the profits of land in the physical possession of another co-owner will
not be sufficient to establish adverse possession, in the absence of positive indications that the co-owner in physical possession was setting up an
adverse title to the knowledge of the other co-owner. The possession of the co-owner should be attributed to his lawful title unless there is a clear
indication that he was openly asserting a title hostile to that of his co-owners. A mere secret intention on his part to hold the property as his own or
to repudiate the will under which he got title, cannot rob another co-owner unaware of that intention of the right to benefit from his possession.
In the judgment reported in Godavari Lakshminarasamma Vs. Godavari Rama Brahman and Others, , a Division Bench of this Court held as
follows:
Possession is never considered adverse if it can be referred to a lawful title. Mere non-participation in the profits of the property by one co-owner
and exclusive possession by the other will not be sufficient to constitute adverse possession by the latter. To constitute ouster by a co-owner, there
must be an open and unequivocal denial of the title of the other coparcener to the knowledge of the latter. Uninterrupted sole, occupation of
common property without more must be referred to the lawful title possessed by the joint holder to use the joint estate and cannot be regarded as
an assertion of right to hold it as separate.
Where certain property is inherited jointly by two persons and enjoyed as tenants-in-common the co-ownership does not cease by the death of
one of them. The legal representative of the deceased becomes co-owner with the surviving co-owner.
In the judgment reported in Dr. J.N. Banavalikar Vs. Municipal Corporation of Delhi and another, , the Supreme Court has held thus:
But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is
insole possession and enjoyment of the profits, of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his
possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one
co-heir is found to be in possession of the properties, it is presumed to be on the basis of joint title. The co-heir in possession cannot render his
possession adverse to the other co-heir, not in possession, merely by any secret hostile animus on his own part in derogation of the other co-heirs''
title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession
and enjoyment by one of them to the knowledge of the other so as to constitute ouster.
The burden of making out ouster is on the person claiming to displace the lawful title of a co-heir by his adverse possession.
In the judgment reported in Shambhu Prasad Singh Vs. Mst. Phool Kumari and Others, , the Supreme Court has observed thus:
Where a house belonging to two sharers was in possession of one of them and the another one residing outside that town occasionally used to visit
the town and at that time reside in the house not as a guest but by asserting his title as he used to reside in the house though the relations between
the co-sharers were not on friendly terms, the facts that another co-sharer used to pay the municipal taxes and repair charges and that his name
was entered in the Municipal Demand Register would not constitute adverse possession in his favour. The facts that the plea of adverse possession
was taken in the written statement in a suit for the first time and that the former co-sharer got rectified the Municipal record immediately after he
got the information and without any objection from the latter negative the plea of adverse possession.
In the judgment reported in Karbalai Begum Vs. Mohd. Sayeed and Another, , the same principle that mere non-participation in the rent and
profits of the land of a co-sharer does not amount to ouster so as to give title by adverse possession to the other co-sharer in possession, is
reiterated. A Division Bench of this Court in the judgment in Mohammed Ismail and Another Vs. Khadirsa Rowther and Others, , has held thus;
What has been laid down in the reported decisions is that assertion of hostile title among co-owners must be to the knowledge of the plaintiff. That
is exactly the distinction between the case of adverse possession between co-owners and the adverse possession between strangers. Mere
possession by the appellants and the 6th defendant in the instant case however long cannot constitute ouster. Equally the non-participation in the
income also cannot imply ouster.
In the instant case, the position of the parties is that of co-owners. Therefore the appellants and the 6th defendant who took advantage of their
possession as such and desired advantage of derogation of the rights of the plaintiffs must disgorge that benefit in favour of the plaintiffs. What was
founded in principles of equity in English law has gained statutory recognition u/s 90 of the Indian Trusts Act. It is a clear case of a co-owner
gaining advantage taking advantage of his position. Section 90 of the Indian Trusts Act would be clearly applicable to the facts of the present case
and it is well open to the plaintiff''s to makea claim.
The same principle is reiterated in the judgment reported in Syed Shah Ghulam Ghouse Mohiuddin and Others Vs. Syed Shah Ahmed Mohiuddin
Kamisul Quadri (Died) by Lrs. and Others, .
13. I have considered the oral and documentary evidence adduced by the respective parties carefully and after hearing the learned Counsel
appearing for both sides lam fortified with the decisions cited by Mr. K. Sampath, learned Senior counsel for the respondents to hold that the claim
of ouster of adverse possession of the appellants, cannot be countenanced. Admittedly, the suit properties were purchased both in the name of
Chinnasami Naidu and Duraisami Naidu under Ex. A-1 sale deed. In view of the Benami Transactions Act, the daughters of Duraisami Naidu,
namely, Meenakshi Ammal and Jayalakshmi Animal are each entitled to 1/2 of half share belonging Duraisami Naidu and the remaining half
belonging to Chinaswami Naidu. The plaintiffs being the legal representatives of Jayalakshmiammal, they are entitled to 1/4th share. I hold that the
first appellant has not prefected title by adverse possession and Rule 2262 of the French Code Civil relied upon by Mr. G. Masilamani, learned
Senior Counsel for the appellants, is not applicable to the facts of the present case. I therefore find all the points in favour of the respondents and
the appellants are not entitled to succeed in this appeal. Accordingly, the appeal deserves to be dismissed and therefore, it is dismissed. In the
circumstances, there is no order as to costs.
