Mohamed Sahubdheen vs Mavula Mohaideen and Others

Varadarajan, J.—The Plaintiff who lost in both the Courts below is the Appellant. He filed the suit for partition and separation of a 1/10th share in the plaint Schedule property, namely, 35 cents out of 40 cents in Section No. 468/1 in Kanchangudi Village, Ramanathapuram Taluk. The suit property originally belonged to one Segu Sadakku who had two sons, Naina Mohamed and Segu Mohamed. Naina Mohamed gifted one half of his half share to his second son, Mohamed Abubacker and the other half to his two daughters, Mohamed Sarammal and Habib Ammal. Those two daughters sold their half-share, in their father�s half-share to one Alia Pitchai Ambalam. Mohamed Abdubacker who got a half-share out of his father''s half-share sold it to the first Respondent (first Defendant). The first Respondent purchased from one Mohamed Abubacker Nachiyar, wife of Segu Mohamed''s second son Mohamed Mohideen a share in the property under exhibit B-3, dated 26th September, 1950. The first Respondent purchased the share of Segu Mohamed''s daughter Mariam Beevi from her daughter Mathina Beevi under exhibit B-4, dated 29th May, 1950 and from her husband Mohamed Assana Labbai under exhibit. B-5, dated 29th May 1950. He purchased a share of Segu Mohamed''s other son jalaludeen under exhibit B-6, dated llth November, 1950. He purchased from Mohamed Abubacker Nachiar, the daughter of Segu Mohamed, her share under a sale deed, which has not been produced. Mahaboob-ammal, the wife of Seen Midhar, another son of Segu Mohamed and her minor children, including the Plaintiff-Appellant, sold her husband''s share to one Mohamed Aliar under exhibit B-7, dated 19th May, 1951. The Appellant purchased the share of his mother Mahaboobammal and sisters Kathija, Rabibudheen and Ravia Ammal under exhibit A-2, dated 9th August, 1968 out of his father''s share namely, 84/960 and he claimed the other 12/960th share as the heir of his paternal uncle Shahul Hameed. Thus, the Appellant claimed 1/10th share in the property, namely, 84/960 and 12/960. Alia Pitchai Ambalam, the purchaser from Mohamed Sarammal and Habib Ammal filed Original Suit No. 343 of 1953 on the file of the District Munsif''s Court, Ramanathapuram for partition of his share and obtained a preliminary decree. Exhibit B-16 is the certified copy of the judgment in that suit. In that suit, item 1 was the half shire in the present suit property. Under the finaldecree exhibit A-1, dated 30th November, 1962, Alla Pitchai Ambalam was allotted 5 cents in the suit survey number. Defendants 3 to 6 are the sons of Jalaludeen, the son of Segu Mohamed.

The defence of the first Respondent who alone contested the suit was that he has purchased the entire property except 5 cents allotted to Alla Pitchai Ambalam in the final decree exhibit, A-1 that he has acquired title even by adverse possession by being in possession of the property from 1950 in pursuance of the sales and that the present suit is barred by Order II Rule 2 CPC on the ground that the Appellant who was a party to the earlier partition suit had not got the share allotted to him in that suit. The first Respondent further contended that the present suit is barred, by limitation, the same not having been filed within three years of attainment of majority by the Appellant. He claimed to hive sold some portions of the remaining 40 cents to Khaja Mohideen and others under exhibits B-10 to B-21 and contended that the suit is bad for non-joinder of his alienees under those documents.

The seventh Defendant who is the son of Mohamed Mohideen, the second son of Segu Mohamed claimed his father''s share in the property. The Appellant is the son of Segu Mohamed''s another son of Seeni Midhar Sahib. Shahual Hameed is the eldest son of Segu Mohamed.

The trial Court held that the first Respondent has not purchased Shahul Hameed''s share, but has acquired title by adverse possession, that the suit is barred by limitation, that the seventh Defendant is not entitled to any share and that the suit is barred, by limitation and bad for non-joinder of necessary parties and he, therefore, dismissed the suit without costs.

On appeal, it was found by the learned Subordinate Judge that the first Respondent has acquired title by adverse possession. Therefore, he dismissed the appeal without costs.

Both the Courts below have concurrently found that the Appellant has title to 1/10th share in the, plaint Schedule property namely 35 cents out of 40 cents S. No. 468/1 which remained after the separation of Alla pitchai Ambalam''s share in pursuance of the final decree exhibit A-1 passed in Original Suit No. 343 of the 1953 on the filed of the District Munsifs Court, Ramanathapuram. The trial Court has observed that the Appellant should have filed the suit within twelve years from the date of alienation made under exhibit B-27, dated 2nd October, 1950 or at least within three years of his attainment of majority. The Appellant filed the suit when he was 28 years old, nearly 10 years after he had attained majority.

The point that arises for consideration in the second appeal is whether the suit is barred by limitation. The learned Counsel for the Appellant submitted that the suit property is a vacant land and therefore possession must be deemed to follow title and there is no question of first Respondent acquiring title to the property by ad verse possession. He next contended that the alienee under exhibit B-27 was in the position of a co-owner with reference to the Appellant and that his possession was for and on behalf of the Appellant and it would not amount to adverse possession. In this conation he sought to rely upon the final decree exhibit A-1, dated 30th November, 1962 by which the share of Alla Pitchai Ambalam had teen separated from the remaining partition of the property which originally belonged to Segu Sadakku an ancestor of the Appellant.

The property was a vacant site at the time of the earliest alienation made under exhibit B-27, dated 2nd October, 1950. It was a vacant site even during 1966 to 1968 when portions of the property were sold by the first Respondent under exhibits B-18 to B-21 in favour of Haja Mohideen and others. It continued to be a vacant site in 1962, as seen from the Commissioner''s report attached to the final decree exhibit A-1 The first Respondent has produced house tax receipts exhibits B-22 to B-24 issued to Mohamed Seeni Ammal, the purchaser under exhibit B-21 Haja Mohideen the purchaser under exhibits B-18 and B-19 and one Ummal Ayisha respectively. Ummal Ayisha had probably paid tax for same superstructure put on the portion of the property sold to Ummal Salma Beevi under exhibit B-20. These house tax receipts show that some houses had been put up on portions of the suit property only in about 1969 and 1970 after the date of the suit. The learned Subordinate Judge has proceeded en the basis that the property was a vacant site.

In this connection, the learned Counsel for the Appellant invited my attention to two decisions. The first decision relied upon by him is a Bench decision of the Calcutta High Court in Jagannath v. Chandni Bibi AIR 1921 Cal. 647, where it is observed:

As was pointed out in Dwijendra Narain v. Purnendu Narain (1910) 11 C.L.J. 180, the erection of a substantial building on joint property by one co-owner cannot be regarded as conclusive evidence of ouster, and this accords with the view indicated in Anand v. Parbati (1906) 4 C.L.J. 198, and Upendra v. Umes (1910) 12 C.L.J. 25. The fact that the surplus profits, if any have not been received by Lachmi Bibi since 1901 is equally inconclusive, in view of the principles settled, beyond controversy by recent decisions of the Judicial Committee....

The fundamental rule is that in order to establish adverse possession as between co-sharers, there must be evidence of an open assertion, of a hostile title by one of them to the knowledge of the others; mere non-participation in the profits by one party and exclusive occupation by the other is not conclusive...Every co-tenant has the right to enter into and occupy the common property and every part thereof, provided that in so doing he does not exclude his fellow, tenants or otherwise deny to them some right to which they are entitled as co-tenants; and they on their part, may safely assume, until something (sic) of which they must take notice and which indicates the contrary, that the possession taken and held by him is held as a co-tenant, and is in law the possession of all the co-tenants, and not adverse to any of them. It cannot be questioned, however, that one co-tenant may oust the others and set up an exclusive right of ownership in himself; and an open, notorious and hostile possession of this character for the statutory period will ripen into title as against the co-tenants who are ousted....

The second decision on relied upon by the learned Counsel for the Appellant is a Bench decision of this Court in Abdul Kadir v. Umma ILR (1970) 2 Mad. 636, In that decision, venkataraman J. has observed:

...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 coheir, not in possession merly by any secret hostile animus on his own part in derogation of the other co-heir''s title...It is a settled rule of law that as between coheirs 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 substantive law is thus to bring about ouster the co-owner''s exclusive possession must be in denial of the title of the other, co-owner and must be brought home to the knowledge of the latter....

In the same case, Ramamurti J., has observed:

...In the case of an ouster of a co-owner, the question is essentially different. It must be brought to the knowledge of the co-owner concerned, that his rights are invaded in open assertion of a hostile title. As amoungst-co-owners, there is unity of possession. Possession of one co-owner is presumed to be on behalf of all the co-owners. To constitute ouster, there must be something more than mere exclusive possession and a receipt of income. There must be, for an ouster, a hostile open denial and repudiation of the fights of other co-owners and this denial or repudiation must be brought home to the co-owners. This does not necessarily mean that the co-owner sought to be ousted or excluded should be informed or told as such by the other co-owners.

Apart from the dealings with the property by and in favour of strangers commencing from exhibit B-27 dated 2nd October 1950, there is no evidence of any open assertion of hostile title as against the other persons entitled to shares in the property. Therefore, the argument of the learned Counsel for the Appellant that it could not be stated that the first Respondent has acquired title by ouster or adverse possession would have to be accepted if the alienee was a co-owner with the Appellant. But he was a stranger and not a co-owner.

The learned Counsel for the Appellant submitted that adverse possession of the alienee had not stated, during minority of the Appellant. In support of his contention, he relied upon the decision of Henderson J. in Lalit Kumar Das Chaudhury and Others Vs. Nogendra Lal Das and Others, . The dispute in that case was a bout a four annas share in a certain tank. Bight annas share in the tank belonged to one Durga Charan and it was inherited by his sons Khagendra and Jogendra. Khagendra sold the 8 annas share to the Plaintiff''s father during the minority of Jogendra. Subsequently, Jogendra sold it to the Appellants therein after attaining his majority. The question was which of those two sales was to prevail. Henderson J. observed in his judgment:

...Further more the possession of the Plaintiffs could not be adverse to Jogendra until he attained his majority. There is a finding of fact that he attained his majority in 1926. Accordingly twelve years had not elapsed when the suit was filed and the Appellants had entered into possession at a still earlier date....

With respect, it is not possible to follow this decision which is opposed to the decision of a Bench of this Court in Seetharama Raju v. Subba Raju ILR 45 Mad. 361. At page 368 of the said Beach decision, it is observed:

...We do not think it can be stated as a general preposition that there could be no adverse possession of property which belongs to a lunatic or minor during the continuance of the lunacy or minority of the owner. The question has in each case to be decided with reference to the anterior relationship between the person taking possession and the minor or lunatic, and to whether any circumstances exist which would entitle the court to hold that the person who entered into possession did so under circumstances which in law make him only an agent or bailiff of the minor or lunatic. The scheme of the Limitation Act shows that though time begins to run against minors and lunatics an extended period of limitation is given. Section 6 provides that where a person entitled to institute a suit or make an application for the execution of the decree is at the time from which the period of limitation is to be reckoned, a minor or insane or an idiot, he may institute the suit or make the application within the same period after the disablity has ceased as would otherwise have been allowed from the time prescribed therefore in the third column of the first Schedule to the Act, and that where the disability continued up to the death of such person his legal representative may institute the suit or make the application within the same period after the death as would otherwise have been allowed from the time so prescribed; and where the legal representative is also under disability at the date of the death he will have the same privileges as are conferred by clauses 1 and 2 to Section 6. Section 8 provides that the period within which any suit must be instituted or application made will not be extended to more than three years from the cessation of the disability or the death of the person affected thereby...It seems to us from the provisions of the Limitation Act that lunacy or minority would not by itself prevent limitation from running as against a lunatic or minor and that in cases where it is clear that the person entering into possession was under no duty to the lunatic or minor and entered into possession for his own benefit and in assertion of a title hostile to that of the lunatic or minor, limitation would begin to run from the date when he so took possession though the lunatic would be entitled to file a suit within three years from the date when his disability ceases....

The learned Counsel for the Appellant next relied upon a Bench decision of the Kerala High Court in K.S. Ramachandran Nair and Others Vs. Samy Pillai Gouri Pillai and Others, , where it is observed in paragraph 8 thus:

In K.S. Ramachandran Nair and Others Vs. Samy Pillai Gouri Pillai and Others, , the learned Judge observed that the possession of a transfree of a co-owner of the whole property is adverse to the other co-owners from the moment of his entry. Earlier, while noticing the principle that the sole possession of a co-owner, though of the entire property, is referable to the lawful title, the learned Judge stated that this principle has no application to the sole possession of one, who is not in fact a co-owner but one who has obtained possession of the whole property from a co-owner by a transfer or otherwise. For this purpose, the learned Judge was of the view, that the transferee must really be treated as a stranger to the other co-owners, and adverse possession as between strangers does not fall to be tested in the light of ouster or knowledge.

With respect, we feel that the propositions underlined have been too widely stated, and fail to take note of the principles stated in Freeman in Co-Tenancy Partition'' referred to earlier and noticed in the Division Bench judgment in 1970 Kerala L.T. 1043. The observations were also unnecessary, on the actual facts. The learned Judge strongly relied on the decision of a Full Bench of the Madras High Court in Palania Pillai�s Case AIR 19 (sic) Mad. 662 (F.B.). The Full Bench observed that when one of several co-sharers lets into possession a stranger who proceeds to cultivate the land for his own benefit the other co-shareres must, unless they deliberately close their eyes, know of what is going on, but if they are so regardless of their own interests they must take the consequences. The Court observed:

Where a person who is in possession under a usufructuary mortgage granted by one of several co-parceners remains in possession of the land and cultivated it for years, a position which we have here, there can be no doubt that the requirements of continuity, publicity and extent for adverse possession are fully complied with...In Order that there may be no mis under standings we will add that the interest which the Appellant has acquired is the interest of a usufructuary mortgogee. He has not acquired a full title to the property. As a matter of fact the learned Advocate for the (sic) suggested otherwise. The observations that we have underlined, above, are significant, and appear to have been missed by the learned. Judge in Joseph Vs. John, . We are of the opinion that a transfer of the common property by one of the co-owners in (sic) of exclusive right in himself, followed merely by possession by the transferee for over twelve years, without knowledge or ouster of the other co-owner (s) cannot operate to bar altogether the rights of such other(s). Whether the transferee can prescribe for the limited light transferred, such as a mortgage, is a point on which we wish to express no opinion.

With respect, it is not possible to follow this decision which runs counter to the decision of a Full Bench of this Muthal Achi Vs. Doraisami Pillai and Another, referred to in this decision itself.

The learned Counsel for the Appellant next relief upon a decision of Sulaiman J. in Subah Lal Vs. Fateh Mohamad which went up before him on difference of opinion between Mukerji and Niamatullah JJ. of that Court. It is observed therein:

...A co-owner has no duty cast upon him to watch the conduct of another co-owner and be on the look-out to find out the extent of the share purported to be transferred by him and to intervene if more than the real share has been transferred. He is entitled to assume that the permissive nature of the possession has passed on to his co-owner''s transferee who has now become the co-owner in the place of the original co-owner. Of course if the assertion of title to the whole is brought to his knowledge and it is accompanied by his ouster and exclusion adverse possession would then commence as against him.

This view of the teamed Judge runs counter to the view expressed by a Full Bench of this Court in Muthal Achi Vs. Doraisami Pillai and Another, mentioned above and could not, therefore, be followed by this Court.

The learned Counsel for the Appellant next relied upon a Bench decision of this Court in Kaliba v. Abdulla ILR (1963) Mad. (101) where a view similar to the one expressed by Sulaiman J. in Subah Lal Vs. Fateh Mohamad has been expressed. But no reference has been made in this Bench decision to the decision of a Full Bench of this Court in Muthal Achi Vs. Doraisami Pillai and Another, . Moreover a view contrary to the one expressed by the learned Judges in Kaliba v. Abdulla ILR (1963) Mad. (101) has been expressed by a Full Bench of this Court in Shiek Abdul Gafur v. Ashamath Bibi 11 L.W. 31 (F.B.). The view expressed therein is that the possession of an alienee from one of several co-tenants is adverse as against the other co-tenants from the moment of the entry into possession by the alienee.

The learned Counsel for the Appellant next relied upon the decision of Pandranga Row J. in Chenganakattil Mohidin v. Pottengal Kunhalikutti (1935) M.W.N. 1297. The learned Judge has observed at page 1298:

The other point has been urged at some length and it has been contended that because the purchaser under the deed of 1911 executed by the 4th Defendant took possession of the entire properties, that is to say, of All the shares, it must be deemed that his possession was adverse from the date of sale even in the absence of any knowledge of the sale on the part of co-sharers ether than the actual executant of the deed. There can be no doubt that in view of the Privy Council decision in Imambandi v. Mutsaddi 1919 M.W.N. 91 (P.C.) the sale by the 4th Defendant Who was not the legal guardian of Defendants 1 to 3 at the time, purporting to convey their shares also in property is void and cannot be binding on the minors; the sale can be valid only as regards the 4th Defendant''s share in the property. The position therefore, is that the purchaser came into possession as the rightful owner of a share in the property and as regards the rest of the shares which belonged to Defendants 1 to 3, he got no title. But it does not follow that his possession of those shares was adverse possession, as that possession can be traced to his valid title as the transferee firm one of the sharers, namely, the 4th Defendant. It is a well-established principle of law that possession can never be deemed and is never deemed to be adverse if it can be traced to a lawful title. The principle is so well under stood that it is unnecessary to quote authority in support of it; it has been affirmed and acted upon in several cases by the Lordships of the Judicial Committee and it is really not disputed. It is, however contended that it does make a difference if the purchase was not originally, that is, before the purchase, a co-sharer in other words, though, if one co-sharer purports to acquire under an invalid sale the shares of the other co-sharer from persons who have no right to convey them, his possession would not be adverse to the other co-sharers from the date of the sale deed, nevertheless, if, as in this case, the purchaser came into possession only under the purchaser and was not a co-sharer before the purchase, his possession of the other shares to which he got no valid title must be deemed to be adverse to the true owners even in the absence of any notice of the sale to them or in the absense of any proof that they knew of that sale. I am unable to accept this contention. There is no good reason for making this difference between one who is already a co-sharer and one who becomes a co-sharer at the time he gets possession of the other sharers. The general principle is that where a man has got a lawful title to possession, his possession must be traced to that title and he cannot be permitted to plead his own wrong, so to speak and contend that when he got possession with out title, as a co-sharer under the deed, he had not the right in law of being in possession of the entire property. The interest which was purchased from the 4th Defendant to the extent it was valid, was the interest of the 4th Defendant, that is to say, her interest as a co-owner and the transferee from such co-owner cannot get higher rights than the transferor, nor can he escape the liabilities to which a co-owner is subject. In other words the person who takes a transfer from a co-owner steps into the shoes of his transferor and is clothed with all the rights and be comes subject to all the liabilities of his transferor. So far as rights in regard to the other shares la the properties are concerned they are left unchanged by reason of the transfer and it would therefore follow that the possession of the purchaser in 1911 cannot be deemed id be ad verse to the true owners namely Defendants 1 to 3 unless it is shown that a hostile title was asserted by the purchaser to their knowledge. Proof of such knowledge or ouster is lacking in this case and it is obvious that no such evidence on a point like this can be expected in view of the fact that Defendants 1 and 2 were children of tender age at the time of the sale and could not possibly be expected to have known or to have appreciated the nature of the transaction even if they were told of it at that age. The 1st Defendant was 6 years old at the time and the 2nd Defendant was younger by two years. Even in 1917 that is to say 12 years before the filing of the suit they were only 12 years and 10 years of age respectively it is impossible to believe that boys of that age would have known that their shares were being held under a title hostile to them. There is no reason to suppose that they knew anything then about it. On this point I see no reason whatever to differ from the finding of the learned District Judge who observes that the dates of birth are only to be remembered in order to demonstrate how absurd the contention is that Defendants 1 and 2 had knowledge.

On the whole I see no reason to differ from the finding of the learned District Judge to the effect that adverse possession for ever 12 years has not been established by the contesting Defendants 5 and 6...

The learned Judge has not referred in this decision to Sections 6 and 8 of the Limitation Act or to the earlier decision of a Division Bench of this Court in Seetharama Raju v. Subba Raju ILR 45 Mad. 361 referred to above. Moreover, that decision runs cornier to the decision of a Full Bench of this Court in Sheik Abdul Gafur v. Ashamath Bibi 11 L.W. 31 (F.B.), referred to above.

Apart from the decision in Seetharama Raju v. Subba Raju ILR 45 Mad. 361 referred to above and relied upon by the learned Counsel for the first Respondent, reliance has been made upon a decision of Das J. in Bibhuti Bhusan Modak and Another Vs. Girish Chandra Pal and Others, , where the learned Judge has observed:

Kalipada was a minor at the time when the sale deed in favour of Shambhu was executed by Jamuna Mandalani in 1932, and attained majority in 1939. It has been found that Jamuna Mandalani purported to transfer the property to Shambhu in her own right, and not as guardian of her minor son. In other words, she transferred the property as an unauthorised person, and Shambhu''s possession was without any valid title; therefore, Shambhu''s possession was adverse to that of the rightful owner. There are a number of decisions which have laid down that limitation does not cease to run merely because the rightful owner is a minor at the time when the limitation starts...In the case before me, Shambhu Mahto was in possession from 1932 to 1943, and in 1943 the person who purchased from Shambhu Mahto came in possession. If Articles 142 applies, as in my opinion it does, the suits were clearly barred by time, as the Plaintiffs had failed to prove their subsisting title learned Counsel for the Plaintiffs-Appellants has contended that Article 144, Limitation Act, would apply, and has relied en a Single Judge decision of this Court in Kanchan Teli v. Mega Mahton AIR 1934 where it was observed that the question of onus must be determined upon the allegation of the Plaintiff and the Defendant. That was a case where the Defendant alleged that the Plaintiff had never been in possession. In the case before me, the allegation of the Defendant was that Kalipada ceased to have possession after the sale by his mother in favour of Shambhu Mahto. I do not think that the Plaintiff-Appellants are in a better position if Articles 144, Limitation Act, is applied. Shambhu''s possession was undoubtedly hostile lo the rightful owner. Shambhu purchased the property from Jammuna that purchase gave him no title, but he came in possession in open assertion of his hostile title. He continued in such possession till 1943 and sold the lands in that year to the Defendant. The Defendant is, in my opinion, Kalipada attained majority in 1939. That is the finding of the Courts below. The suits were instituted in 1945, that is, mere than 12 years after limitation had begun to run, and also beyond the period of three years of attaining majority by kalipada. It has been contended before me that the possession of the mother who was the guardian of Kalipada was not and could net be adverse to Kalipada. It is further contended that the guardian cannot by a device give possession to somebody else and make it adverse to the minor. This, however, is net a case where the guardian by a device gives possession to some body else on behalf of the minor. This is a case where the mother purports to sell in her owns right and the finding of the Courts below is that the purchase was genuine and for consideration. My attention has been drawn to a statement in the judgment of the learned District Munsif that Shambhu was related to Kalipada�s father. Assuming that there was such a relation, the clear finding of the Courts below is that Shambhu came in possession asserting his own light to the property by the purchase from the mother. In such circumstances Shambhu''s possession was undoubtedly hostile to that of the rightful owner. Learned Counsel for the Plaintiff-Appellants has placed reliance on a decision of the Privy Council in AIR 1932 81 (Privy Council) . That was, however, a case where the mother was in possession on behalf of the minor''s and it was held that such possession of the mother was not adverse to the minors. It is not the mother''s possession which was adverse to the miner''s but the possession of Shambhu who asserted his own title to the lands.

The learned Counsel for the first Respondent relied upon a Full Bench decision of the Andhra Pradesh High Court in Nannekhan v. Ganpathi AIR 1954 Hyd. 45 where it has been observed:

Section 28, Limitation Act, lays down that at the termination of the period laid down under the law of limitation to any person for instituting a suit for possession of any property, the right of that person to such property shill be extinguished. Ordinarily the right would get extinguished but here the person against whom adverse possession is set up is a minor. The question, therefore, is whether the title of the Respondent had become perfect by prescription even against him.

Section 6, Limitation Act, relates to the period of Limitation for filing suits with respect to persons suffering under a legal disability. It lays down that where a person entitled to institute a suit a miner at the time from which the period of limitation is to be reckoned, he may institute the suit within the same period after disability has ceased as would otherwise have been allowed from the time prescribed therefor. It has to be borne in mind that the provisions of this section are governed and controlled by Section 8 Limitation Act which lays down that nothing in Section 6 shall be deemed to extend for more than 3 years from the cessation of the disability the period within which any suit be instituted.

From a reading of these two sections, it would be evident that if the minor has at the date of his attaining the majority, a larger period than that of 3 years as provided the law of limitation for filing a suit he can file that suit within the original period of limitation though it may, in some cases, be of more than 3 years. But if the period prescribed under the law expires during the time when he is a minor never the less the suit would have to be brought within 3 years from the date of his attaining majority. In this case Defendant I, who was out of possession could have, under the provisions of these two sections, filed the suit for possession in or before 134 of as the cause of action for filing the suit for possession acquired to him on the date of the sale deed and the taking over of the possession of the land by the Plaintiff i.e., from 30th Isfander, 1328F. By reason of his minority, he is entitled to have a longer period for filing the suit until three years hid elapsed after the ceasing of the disability. From the records it is clear that he (Defendant 1) was cut of possession since 1328F. and he could have filed a suit for possession as state above, by 1340F. but he did not do so.

The result is that under the provisions of Section 28 Limitation Act his title to the suit property had become extinguished. He could re longer be said to be the owner of the property in question and as such he was not entitled to dispossess the Plaintiff on 6th Meher, 1346F. The prescription in 1340F.

In Vasudeva Padhi Khadangat Garu v. Maguni Devan Bakshi Mhapatrulu Garu ILR 24 Mad. 387 (P.C.) the Privy Council held that a person under disability may, after the disability had ceased, institute a suit within the same period that would have been allowed to him under the Schedule, as if he had not been under a disability. The case was decided under the provisions of the Indian Limitation Act, 1877. Section 8 of the present Limitation Act corresponded to proviso to Section 7 Limitation Act of 1877. With reference to that proviso, their Lordships held that the proviso further governed the provisions of sections pertaining to the provisions with regard to the persons under disability and laid down that the time allowed after the period when the disability ceased could not in any case, be extended to more than three years from the date when the disability ceased.

In Kalidindi Seetaramaraju Vs. Vegesana Subbaraju and Others, , their Lordships of the Madras High Court held a similar view. Therein the question of adverse possession and its nature were discussed. It was observed that where a person entering into possession of a lunatic''s property was in no fiduciary relationship to the lunatic, he must be deemed to have entered into possession for his own benefit and in assertion of a title he stile to the lunatic, and, therefore limitation would begin to run from the date when he took a such possession although the lunatic would be entitled to sue for the recovery of the property within 3 years from the date when his disability ceased. The facts presented in the appeal before us are very much similar to this. In this cafe also the Plaintiff entered into res session en the basis of a sale deed and in assertion of a title based or that document which was clearly hostile to the interests of Defendant 1. There was no fiduciary relationship between the Plaintiff and Defendant 1. Thus, the principle laid down in Morgan v. Morgan (1937) 26 E.R. 310 cannot be applied to this case.

Having regard to the decisions relied upon by the learned Counsel for the first Respondent and referred to above it is not possible to agree with the learned Counsel for the Appellant that this is a case of alienation of minor''s share along with the share to which the other alienor was entitled that the alienee was, therefore, a co-owner with the miner whose share had been alienated, that adverse possession had not started until the minor attained majority and that the minor would have a period of 12 years for filing the suit from the date of attaining majority. This argument overlooks the scheme of the Limitation Act and the provisions of Sections 6 and 8 of that Act which have been clearly brought out in the decision of a Bench of this Court in Seetharama Raju v. Subba Raju ILR 45 Mad. 361. Under the circumstances, I agree with the Learned District Munsif that the suit net having been filed, within three years of attainment of majority by the Appellant, it is barred by limitation and that the Appellant''s light has been extinguished by Terser of Section 27 of the Limitation Act, which lays down that at the determination of the period limited in the Act to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

The second appeal, therefore, fails and is dismissed with the first Respondent''s costs. No leave.