Judgement Appeal from a judgment and decree of the High Court (November 19, 1915), reversing a decree of the District Court of Chinglepat (August 11, 1912). The suit was instituted by the appellants in October, 1912, against the respondent, claiming a declaration of their title to a moiety of a mitta, or estate, known as Kariamangalani, and consisting of two villages. The appellants claimed as the heirs of Parthasarathi Pillai upon the death of his widow Alangarammal, which occurred in 1912; alternatively they claimed as the heris of Alangarammal. The respondent, who was in possession, alleged that the moiety in question had passed under the will of Parthasarathi Pillai to his said widow absolutely, and that she had made a gift of it to the respondents mother, Duraisani; alternatively the respondent relied on the Indian Limitation Act, 1908, alleging adverse possession of the property by her mother from 1896, and after her mothers death in 191] by herself. The facts appear from the judgment of their Lordships. The District Judge held that on the construction of the will of Parthasarathi Pillai, his widow took an absolute and not merely a life interest, but that the alleged gift to the respondents mother was not proved, there being no registered instrument to satisfy s. 123 of the Transfer of Property Act, 1882. He further held that the possession of the two villages by the respondents mother had been merely permissive for her mother and aunt (Rajammal and Alangarammal) and not adverse to them. He found that the appellants were entitled as heirs and made a decree in their favour. Upon an appeal to the High Court the learned judges (Sankaran Nair and Trotter JJ.) differed from one another on the question of limitation. Sankaran Nair J. was of opinion that the petition of October, 1895 (the terms of which sufficiently appear from their Lordships judgment), was not admissible in evidence to prove the nature of the possession held by Duraisani, and that there was no competent evidence to prove that her possession was adverse. Trotter J., on the other hand, was of opinion that the petition was admissible as evidence that the signatories recognized that Duraisanis possession was adverse to their own rights. Upon all other questions in the case both learned judges agreed with the judgment of the District Judge. Trotter J., on the other hand, was of opinion that the petition was admissible as evidence that the signatories recognized that Duraisanis possession was adverse to their own rights. Upon all other questions in the case both learned judges agreed with the judgment of the District Judge. The question whether the petition was admissible in evidence for the purpose above stated was referred to a full Bench (Sir James Wallis C.J., Abdur Rahim and Seshagiri Bijyar JJ.) which delivered the following opinion "We think that the petition is not a document requiring registration under s. 17 of the Registration Act. It refers to a gift on October 8, 1895, some days previously, and in spite of the concluding passage, cannot in our opinion be considered, as declaring the rights of the parties within the meaning of s. 17 see Sakharam Krishnaji v. Madan Krishnaji. (( 1881) I. L. R. 5 B. 232.) It is therefore not rendered inadmissible by s. 49 of the Registration Act." The appeal then came for disposal before Trotter and Srivivasa Aiyangar JJ., who held that the respondents defence of limitation was established, and accordingly dismissed the suit. 1919. May 12. De Gruyther K.C. and Kenworthy Brown for the appellants. Upon the true construction of the will of Parthasarathi Pillai, his widow took only a life interest in the moiety in suit, and upon her death the appellants succeeded as his heirs. If the widow took an absolute estate, no gift by her to Duraisani was proved since there was no registered instrument to satisfy s. 123 of the Transfer of Property Act. The appellants are therefore entitled as the widows heirs. There was no evidence of adverse possession in Duraisani. The petition of October, 1895, was not admissible in evidence. It declared the title of Duraisani within the meaning of s. 17 of the Registration Act, and being unregistered was, consequently, by s. 49, inadmissible in evidence. At most it could only be evidence of possession in Duraisani; and having regard to s. 123 of the Transfer of Property Act, 1882, it could not be held to prove that she was in possession under a gift. It was therefore no evidence that she was in adverse possession. In any case upon the death of Rajammal in 1901, Duraisani succeeded to the other moiety of the mitta under Raj annuals will. It was therefore no evidence that she was in adverse possession. In any case upon the death of Rajammal in 1901, Duraisani succeeded to the other moiety of the mitta under Raj annuals will. After that date Duraisani and Alangarammal were joint owners of the mitta, consequently the possession from then was not adverse to Alangarammal Corea v. Appuhamy ([ 1912] A. C. 230.); Muttunayagam v. Brito. ([ 1918] A. C. 895.) C. R. Christie K.C. and W. Ingram for the respondent (who were called on only as to the last contention); the petition and the oral evidence establish that Duraisani was in possession as owner. Time under the statute did not cease to run upon Duraisani and Alangarammal becoming together owners of the entire mitta. June 20. The judgment of their Lordships was delivered by VISCOUNT CAVE. This is an appeal by the plaintiffs from a decree of the High Court of Madras, dated November 19, 1915, reversing a decree of the District Court of Chingleput dated August 11, 1913, and dismissing the suit. The suit was brought to establish the title of the plaintiffs to a moiety of a mitta or estate situated about thirty miles from Madras and known as the mitta of Kariamangalani. The mitta at one time belonged to Narayanasami Pillai, an ancestor of the parties, and on his death it passed to his three sons as members of a joint family. In the year 1845 a partition took place, under the terms of which the eldest son relinquished all interest in the mitta, which thereupon became vested in their two younger sons, Gopala Krishna Pillai and Parthasarathi Pillai, in equal shares. No question arises as to the share of Gopala Krishna; but it is material to state that, on his death in the year 1879 his share became vested in his widow, Rajammal, and that he left issue one child only, a daughter named Duraisani. Parthasarathi died in the year 1867, having made a will upon which a question of construction arises. Clause 3 of the will was in the following terms "I have given my half share in Kariamangalani Mitta to my wife, Nayar Alangarammal (alias Thayarammal), on account of her maintenance and other absolute use. Parthasarathi died in the year 1867, having made a will upon which a question of construction arises. Clause 3 of the will was in the following terms "I have given my half share in Kariamangalani Mitta to my wife, Nayar Alangarammal (alias Thayarammal), on account of her maintenance and other absolute use. She is at liberty to enjoy the same with powers of alienation by sale, etc." By clause 4 of the will the testator gave his property (in general terms) to the two infants of his eldest brother, who are now represented by their sons, the plaintiffs. The plaintiffs contend that the effect [@ pag e LRI A 28 9] of the will was to vest the moiety in question in the testators wife, Alangarammal, for her life only, and that on her death (which occurred in the year 1912) it passed under clause 4 to the plaintiffs; but it was held both in the District Court and in the High Court that clause 3 gave an absolute interest in the moiety to the testators wife, and that the fourth clause operated upon the remaining property only. Their Lordships agree with this construction of the will; and they accordingly hold that, on the death of Parthasarathi, his moiety of the mitt a vested in his widow, Alangarammal, absolutely. But the plaintiffs have an alternative claim. It appears that they were the persons entitled to succeed on the death of Alangarammal to her property not disposed of during her lifetime or by her will, and they contend that the moiety in question was in fact undisposed of at the death of Alangarammal, and accordingly vested in them as her heirs. The defendant, on the other hand, contends that, in consequence of certain events which happened during the lifetime of Alangarammal, the moiety in question passed to Duraisani, and through her to her daughter the defendant, and accordingly that the plaintiffs have no right thereto. These events must now be stated. On October 10, 1895, Rajammal and Alangarammal, who were then the registered owners of the two moieties of the mitta, presented a petition to the collector, whereby, after reciting that they had, on October 8, 1895, given away the two villages constituting the mitta as stridhanam to Duraisani, alias Alamelu, they prayed that orders might be passed for transferring the villages into her name. The petition concluded “The said Alamelu Ammal shall hold and enjoy them with power to alienate them by way of gift, mortgage, sale, etc." Duraisani on the same date also presented a petition to the collector reciting the gift of the villages to her on October 8, 1895, and requesting that they should be transferred into her name. The collector accordingly, on May 8, 1896, registered the mitta in the name of Duraisani. It was not contended before the Board that the above transactions effected a valid gift of the property to Duraisani; for such a gift must, under s. 123 of the Transfer of Property Act, be made by registered deed. Nor, having regarded to s. 91 of the Indian Evidence Act, can the recitals in the petitions be used as evidence of a gift having been made. But the defendants case is that Duraisani, although she may have acquired no legal title under the transactions referred to, in fact took possession of the property when it was transferred into her name and retained such possession until her death in December, 1911, after which date it passed to the defendant as her successor, and accordingly that the plaintiffs claim is barred by upwards of twelve years adverse possession. The High Court upheld this contention; and their Lordships, after considering the evidence, have arrived at the same conclusion. There was a considerable body of evidence showing that Duraisani was in possession or receipt of the rents and profits of the mitta during the period above referred to. At or about the date of the attempted gift, Duraisani, who until then had lived with her husband in Madras, came to live with her mother and her aunt, Alangarammal, in the neighbourhood of the mitta, and thenceforward spent the greater part of the year with them. From the same date all pattas were granted and muchilikas taken in the name of Duraisani alone; and the property was managed by agents appointed by her, who accounted to her for the rents. From the same date all pattas were granted and muchilikas taken in the name of Duraisani alone; and the property was managed by agents appointed by her, who accounted to her for the rents. It was contended on behalf of the plaintiffs that, assuming Duraisani to have been in actual possession of the land, she held such possession, not in her own right, but as trustee or manager only for her mother and aunt, and accordingly that her possession was not such adverse possession as to give a title under the Indian Limitation Act; and in support of this contention the plaintiffs relied upon the evidence of a former " manigar " of the estate, who stated that during the life of Rajammal (who died in 1901) he " used to pay collections to her." But the witness in question prefaced his evidence above referred to by the statement that Duraisani " had confidence in Rajammal " ; and he stated emphatically that Duraisani was zamindarini from 1896. Having regard to these statements and to the remainder of the evidence in the case, the proper inference appears to be that, if any rents were in fact paid to Rajammal after 1896, they were so paid by the direction of her daughter Duraisani (who lived with her) and in order that they might be applied to the joint household expenses. The plaintiffs also relied upon the will of Rajammal dated April 2, 1901. The plaintiffs also relied upon the will of Rajammal dated April 2, 1901. By this will the testatrix referred expressly to the petition of October 10, 1895, and the subsequent transfer of the two villages into the name of Duraisani, and added " and the above two villages are being enjoyed by the said Duraisani Ammal" The will then proceeded as follows " My daughter, the said Alamelu Ammal, alias Duraisani Ammal, shall take the above two villages and shall either amicably or through court recover and take all the following arrears, jewels, etc., due to me, viz., the zamin sircar arrears due to me in the said villages up to past fasli 1305 upon account from the tenants of the said villages, etc." It was held by the District Judge that these words amounted to a devise of the two villages to Duraisani, and accordingly that they afforded evidence that in the view of the testatrix no beneficial gift had been previously made to her, but the High Court held that there was in fact no devise of the villages. In the absence of the original text of the will, which was no doubt seen by the judges in India, their Lordships are unable to say which construction is correct. But even if the devise included the testatrix interest in the two villages, it would appear to be reasonably clear that the gift was by way of confirmation only and affords no evidence that Duraisani was a trustee of the property. In any case the recitals contained in the will are strong evidence of the possession of the property by Duraisani. The plaintiffs also relied upon a draft will which was prepared for Alangarammal just before her death in 1912, but which has been held by the Courts in India not to have been adopted by her as her will. This draft will contained recitals similar to those contained in the will of Rajammal, and these recitals were followed by a gift of the villages to the defendant, who had then succeeded to the estate of Duraisani. It may be doubted whether any valid argument can be founded upon a draft will not signed or adopted by the person for whom it was prepared, but in any case the observations which have been made concerning the will of Rajanimal apply to this draft will also. It may be doubted whether any valid argument can be founded upon a draft will not signed or adopted by the person for whom it was prepared, but in any case the observations which have been made concerning the will of Rajanimal apply to this draft will also. It should be added that, although the petitions of 1895 and the change of names made in the register in consequence of those petitions are not admissible to prove a gift, they may nevertheless be referred to as explaining the nature and character of the possession thenceforth held by Duraisani. In other words, although the petitions and order do not amount to a gift of the land, they lead to the inference that the subsequent receipt of the rents by Duraisani was a receipt in the character of donee and owner of the land, and therefore in her own right and not as trustee or manager for her mother and aunt. Lastly the plaintiffs put forward the contention that on the death of Rajammal in 1901 Duraisani became entitled either under her will or by succession to her moiety of the mitt a, and accordingly that as from that date possession of the villages must be deemed to have been held by her as part owner and not adversely. This contention was founded upon the English rule of law, which was abrogated by the statute 3 & 4 Will. 4, c. 27, s. 12, that the possession of one of several coparceners, joint tenants or tenants in common, is the possession of the others so as to prevent the Statutes of Limitation from affecting them. Whether this rule is applicable to sharers in an unpartitioned agricultural village in India not holding their shares as members of a joint family, it is unnecessary for the purposes of the present case to decide; for upon the facts of the case the rule has no application. The limits of the rule were defined in Culley v. Doe d. Taylerson (( 1840) 11 A. & E. 1008.) as follows "Generally speaking, one tenant in common cannot maintain an ejectment against another tenant in common, because the possession of one tenant in common is the possession of the other, and, to enable the party complaining to maintain an ejectment, there must be an ouster of the party complaining. But, where the claimant, tenant in common, has not been in the participation of the rents and profits for a considerable length of time, and other circumstances concur, the judge will direct the jury to take into consideration whether they will presume l that there has been an ouster ....and, if the jury find an ouster, then the right of the lessor of the plaintiff to an undivided share will be decided exactly in the same way as if he had brought his ejectment for an entirety." In the present case, it is plain that during the life of Rajammal the possession of Duraisani was adverse as against both co-owners; and this being so, there is no reason for holding that when on the death of Rajammal she became legally entitled to a moiety of the property, the character of her possession of the other moiety as against Alangarammal was changed. There having been an ouster of Alangarammal before4 the death of Rajammal, this ouster continued after her death, and the possession of Duraisani was adverse to Alangarammal throughout. This contention therefore also fails. For the above reasons and upon a review of the whole of the evidence their Lordships have arrived at the conclusion that the decision of the High Court is right, and that this appeal should be dismissed with costs, and they will humbly advise His Majesty accordingly.