(Prayer: Appeal (disposed of on 18-7-1950), against the decree of the Court of the Subordinate Judge, Guntur, dated 16-11-1948 in O.S. No. 135 of 1947.)

Satyanarayana Rao, J.

The plaintiff is the appellant in this appeal. His suit for a declaration of title and possession of plaint B schedule properties was dismissed by the lower Court.

The property in suit originally belonged to one Govindu who died on 5th October, 1897 leaving behind him his widow Veeramma and two daughters Peda Kanakamma and China Kanakamma. Veeramma died on the 19th April, 1909 and according to the plaintiffs case, the inheritance was divided between the two daughters in 1910. Peda Kanakamma was married to Bollayya, the father of the defendant. She died in 19

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3. China Kanakamma who is still alive surrendered the estate under a deed of surrender of 14th August 1946-Ex. A-1 to her son, the plaintiff. The plaintiff sues in this suit to recover possession of half of the inheritance of his maternal grandfather which came into possession of Peda Kanakamma by virtue of the partition of 1910 after the death of Veeramma and which continued in the possession of Bullayya, the husband of Peda Kanakamma and after his death with the defendant. The plaintiffs case regarding the possession of Bullayya as stated in paragraph 4 of the plaint is that though after the death of Peda Kanakamma, China Kanakama became entitled to the entirety of the estate as the sole heir, her paternal aunt Lakshmamma whose son was Bullayya and the grand children of that paternal aunt continued to live with her and that she had later on allowed those people to be in possession of plaint B schedule property at the desire of paternal aunt. The case of the defendant as put forward in the written statement was that this Bullayya was brought into the family as an illatom son in-law by Govindu and that he was subsequently married to Peda Kanakamma under an arrangement that he should be entitled to half the properties of Govindu, that the properties were actually partitioned after the marriage of Chinna Kanakamma and that a half share in those properties which is now represented by the B schedule attached to the plaint were given to him and that he had been in possession and enjoyment of the same till his death and thereafter the defendant, his son, came to be in possession. It must be mentioned that this defendant is not the son of Bollayya by Peda Kanakamma but by his second wife Hanumayamma. The defendant in his written statement also attacked the surrender deed as being sham and that it was never intended to be acted upon. There was also a point raised in the issues that the property in dispute did not belong to Govindu and that he did not the possessed of the same but that issue was subsequently abandoned.

The most important point that had to be decided by the lower Court was the truth of the illatom put forward by the defendant. On this question the finding of the trial Court was adverse to the defendant and the defendant has filed cross-objections canvassing the correctness of that finding. The learned Subordinate Judge upheld the surrender as being valid and he also found that there was no alienation by Peda Kanakamma. He would have in the ordinary course decreed the suit in favour of the plaintiff but for the fact he found that Bollayya was in possession of the property ever since 1913 and that the patta was also transferred in his name and according to the Judge this possession was adverse as in his opinion the evidence relied on by the plaintiff to prove the permissive character of the possession was not clear. He therefore dismissed the plaintiffs suit, though he found on most of the issues in his favour, on the ground that as China Kanakamma could not have displaced the title of Bollayya by reason of his adverse possession for more than twelve years, not withstanding the surrender by China Kanakamma in his favour the plaintiff was not entitled to recover possession of the property during the lifetime of China Kanakamma.

The plaintiff preferred this appeal against the decision of the learned Subordinate Judge and as stated above the defendant filed cross-objections attacking the finding of the trial Court on the issue relating to illatom.

We may dispose of the cross-objections first as the point raised by the cross-objections goes to the root of the case. If Bollayyas illatom adoption put forward by the defendant is true and the finding of the learned Judge is erroneous, the plaintiffs suit must fail. We, however, think that there are no reasons for differing from the conclusion arrived at by the learned Subordinate Judge on the question of illatom adoption. The evidence to establish it is entirely oral and there is not a scrap of documentary evidence to prove it notwithstanding the fact that this alleged illatom had occurred more than half a century ago. What is more, the facts proved completely negative the illatom adoption which is put forward. Immediately after the death of Govindu it is proved beyond doubt that the property was registered in the name of Veeramma exclusively without any protest or objection by Bollayya. After the death of Veeramma the properties were divided between Peda Kanakamma and China Kanakamma as is evidenced by the partition lists Exs. A.11 and A.1

2. These partition lists were attested by D.W. 1 though in the witness box he pretended that he was not able to read the letters. This is a very strong circumstance against the alleged illatom adoption put forward by the defendant. At least after the death of Veeramma, Bollayya should have put forward his illatom adoption and his right to a half share under the arrangement pleaded. That would be the conduct of a person who had an undoubted right to a half of the inheritance of Govindu. It was only in 1913 for the first time after the death of Peda Kanakamma, the patta was transferred jointly in the name of Bollayya and China Kanakamma. The learned Judge, in our opinion, has given very cogent reasons to reject the oral testimony put forward on behalf of the defendant, and for the reasons given by him and for the reasons we have, given in this judgment, we agree entirely with his conclusion that the Illatom put forward is not true.

We now come to the plaintiffs appeal. There are really two questions raised in this appeal; firstly, whether the view of the learned Judge that the possession of Bollayya from 1913 was adverse is correct and secondly notwithstanding the adverse possession of Bollayya if true, is the plaintiff entitled to recover possession of the property dating his cause of action from the date of the deed of surrender on the basis of the civil death of China Kanakamma which that surrender had brought about. If we agree with the contentions of the learned Counsel for the appellant on the first point it is really unnecessary for us to deal with the second point. But even there, as the decisions of this Court stand, we think that if Bollayyas adverse possession was established as against China Kanakamma, the plaintiff would not be entitled to displace the title and possession of Bollayya and his son until after the death of Chinna Kanakamma. It has been settled law so far as this Court concerned that if a widow alienates a portion of her husbands estate for purposes not binding on the estate and then surrenders the estate, the surrendered would not be entitled to question the alienation and recover possession of the property until the session of the property until the death of the surrendering widow or the other limited owner. The leading case on the subject is Subbamma v. Subramaniam (39 Mad. 1035 [LQ/MadHC/1915/541] ) and there are other decisions in which this view was followed. There is no difference in principle, in our opinion, between the case of an alienation and a case where the title of the limited owner became extinguished by operation of the statue of limitation. By reason of that adverse possession for more than 12 years, the title of the limited owner became extinguished by virtue of S. 28 of the Limitation Act and the adverse possessor acquires a title good against the limited owner. By virtue of the surrender if the surrendered is not allowed to displace the title of an aliened holding the property under an alienation which was not for a necessary binding purpose, it stands to reason that on the same analogy a person who had acquired title, by adverse possession must also be protected. By adopting the device of surrendering the estate the widow cannot get round the effect of her inaction in not suing within time to recover possession of the property. This principle, in our opinion, was the basis of the decision in Ramayya v. Narasayya (52 M.L.J. 634) which was followed by the lower Court. In that case the widow alienated the property for no binding purpose and the daughter who succeeded to the estate after the death of the widow did not sue to recover possession of the property after getting rid of the alienation. After her right to bring the action became barred, the daughter surrendered possession of the property to the next reversionary who instituted a suit against the aliened to recover possession of the property alienated by the widow. Though it was not an alienation by the daughter who surrendered the estate, the learned Judges who considered the point applied the principle of Subbamma v. Subramaniam (39 Mad. 1035 [LQ/MadHC/1915/541] ) and held that as by the inaction of the daughter her right to recover possession of the property after getting rid of the alienation became extinguished, it was not competent to the reversionary to sue to recover possession of the property until after the death of the daughter. By reason of the application of the statute of limitation there also the right of the limited owner who surrendered the estate became extinguished and the reversionary was not permitted to sue for possession and displace the title acquired under the law of limitation. On the same principle, we think that if the title of Bollayya by adverse possession is otherwise established, the plaintiff would not be entitled to recover possession of the property until after the death of China Kanakamma. No doubt, some of the other High Courts have taken a different view from this Court and have held that in all cases the surrender will operate as the civil death of the limited owner and a cause of action accrues from that date. But in view of the decisions of this Court which have taken a contrary view we think that we are bound to follow the principle of the decision in Ramayya v. Narasayya (52 M.L.J. 634) and the decisions relied on in that case.

This leads us on to the question of fact, viz., whether the possession of Bollayya was adverse or was merely permissive. In the written statement of the defendant, it was claimed that this Bollayya was in possession of the property from the beginning i.e., on the footing that he was the illatom son-in-law and that case has now been proved to be false. Curiously, in the written statement of the defendant no attempt was made to show how and under what circumstances Bollayya came to be in possession of the properties in 1913 and on what basis he had applied for mutation of names in the revenue register. The evidence of P.W. 3, China Kanakamma is in consonance with the pleadings in paragraph 4 of the plaint and it is to the effect that after the death of Peda Kanakamma, by reason of the persuasions of Lakshmamma, the paternal aunt, she was obliged to permit them to enjoy the property, According to her evidence, Lakshmamma represented that they had no other means and that they should be permitted to continue in possession of the property which was conceded by China Kanakamma. Substantially to the same effect is the evidence of D.W. 1, the defendants own witness who was also an attesting witness to the partition lists of 1910 from which it is legitimate to infer that he was acquainted with the affairs of this family from a long time. He says that till Veerammas death she managed the property and that the partition was after China Kanakammas marriage. Later on he goes on to depose that Bollayya and China Kanakamma were living together for 7 or 8 years after Peda Kanakammas death and that they were enjoying the property jointly. This, it is stated by the witness, was with the consent of China Kanakamma, i.e., the possession and enjoyment of Bollayya and after his death that of his son the defendant, was with the consent of China Kanakamma. This evidence certainly corroborates the evidence of China Kanakamma as P.W.

3. If the case of the defendant that Bollayya was in possession from the beginning is false and if there is no other explanation on record in the evidence to show under what circumstances Bollayya came to be in possession of the properties after the death of Peda Kanakamma in 1913 and if the only explanation is that given by P.W. 3 corroborated as it is by D.W. 1s evidence, we have no other option but to accept that explanation. No doubt the burden of proving that possession is permissive is upon the plaintiff but in our opinion he had discharged that burden if the evidence of P.W. 3 and D.W. 1 were to be accepted. We see no reason to reject that evidence. Attempt was made on behalf of the respondent to belittle the effect of the evidence of D.W. 1 but we see no ambiguity in the evidence of that witness, as no attempt was made even in re-examination to explain why that statement was made by the witness in the box. We must take it that the witness was fully alive to what he was speaking in the witness box and made the statement that the enjoyment of Bollayya after the death of Peda Kanakamma was with the permission of China Kanakamma. Curiously the learned Subordinate Judge belittles the effect of this evidence when he says that these two statements do not in his opinion mean anything more than that China Kanakamma did not object to their enjoying and that it does not necessarily mean that they enjoyed only as licencees. In our opinion, the evidence certainly means that the enjoyment was with the consent, not merely a negative attitude on the part of China Kanakamma of not objecting to their enjoyment. We therefore disagree with the conclusion of the learned Judge that the possession of Bollayya from 1913 was not permissive and find that his possession was permissive and that it was with the consent of Chinna Kanakamma. We therefore hold that it was open to China Kanakamma to terminate that permissive possession and for the plaintiff to recover the property. We therefore allow the appeal and set aside the decree of the learned Subordinate Judge dismissing the suit and grant a decree in plaintiffs favour as prayed for in the plaint with costs here and in the Court below. The manse profits payable to the plaintiff by the defendant shall be enquired into by the lower Court under O. 20, Civil Procedure Code. The memorandum of cross-objections is dismissed but without costs.