1. This is an appeal in forma pauperis from a decree of the Joint First Class Subordinate Judge of Dharwar dismissing the plaintiff's suit for partition and possession of a half share in property alleged to be joint family property of plaintiff and defendants.
2. The relationship of the parties was a matter of contest in the trial Court, the defendants alleging that the plaintiff is not even their kinsman. But it has been held (and is not now disputed) that the parties are bhaubands descended from a common ancestor, Venkanagawda, the defendants through his first wife and the plaintiff through his second wife. There is a genealogical table given in the judgment of the trial Court.
3. The property in suit is valuable, consisting of patilki watan in two villages, Arshanagodi and Benkankop, the kulkarni watan in Benkankop and other lands in those and two other villages. The total area is roughly 1,000 acres producing an income of over Us. 8000 a year. The plaintiff is in possession and enjoyment of two fields Survey Nos. 46 and 78/2 which form, or once formed, part of the patilki watan of Arshanagodi. The area of these is one and half mars which is about 32 acres. The income is about Rs. 200. This land has admittedly been in the possession of the plaintiff's branch from the time of his grandfather, Marigavda, who died in 1844 or soon after. In what capacity or by what right Marigavda acquired it is one of the matters in dispute. The plaintiff's case is that the land was given to Marigavda for maintenance (potgi) and that another one and a half mars were given as potgi to Marigavda's brother's son Ramanagavda alias Venkanagavda. The latter died without issue and his land apparently reverted to the defendants. But Marigavda's two fields have remained in possession of his descendants to this day, not, according to the plaintiff, as their separate property, but as potgi lands enjoyed by them as members of the joint family. The defendants' case, on the other hand, was that Marigavda and his descendants were merely tenants of the two fields.
4. It was alleged in the written statement that Marigavda became divided from the main branch of the family 140 or 150 years before this suit was filed in 1923, which would mean, if that estimate could be taken strictly, about 1770 or 1780. It was also alleged that the suit properties were acquired after Marigavda ceased to be a member of the joint family. The finding of the trial Court is that there was a separation some time between 1823 and 1843, that the Arshanagodi watan belonged to the family at that time and that Marigavda and his brother's son, as representing the branch descended from Venkanagavda's second wife, got three mars of the watan land as their share of the estate then existing. The Judge has rejected both the plaintiff's contention that the land is given as potgi and the defendants' contention that it was a case of ordinary tenancy. Mr. Tuljapurkar, who appears for the appellant, has argued that, in so finding, the Judge has made out a new case. He also complains that the finding that there was a division before 1843, in which the three mars came to the share of the descendants of the Venkatgavda's second wife, is mainly based on a certain jamabandi chithi of 1844, Exhibit 164, which, he says, has been misunderstood. But in a case in which we are concerned with such ancient history, the pleadings should not be construed too strictly. None of the parties can have any personal knowledge. If the evidence shows that there was a separation in interest, though at a time later than the defendants alleged, and that some of the suit properties were affected by it, in my opinion the Court is not debarred from so finding. This document, Exhibit 164, purports to be an extract from a jamabandi chithi prepared in 1844 in connection with the Arshanagodi watan, The contents of it are correctly set out in para. 57 of the trial Court's judgment:-
It mentions two bans or main sharers. Karabasanagavda is one of these sharers while Rayavva Gaudasani is shown as another sharer. The share of Karabasangavda's branch is shown as five annas four pies while that of Rayavva is shown as ten annas eight pies. The sub-sharers in Karabasangavda's branch are shown as Ramangavda, two annas eight pies, and Marigavda, two annas eight pies. The history of the watan is then given. It mentions that Rayavva a woman of a different caste, was the owner of the whole watan first; that the ancestors of Karabasanagavda purchased one-third share of this watan from Rayavva during the reign of the Peshwas ; that Rayavva, while in possession of the remaining portion, ran away from the village in Peshwa's time; that Karabasanagavda's ancestors were in possession of that portion since then, and that the watan is, therefore, entered in their names.
5. It should be mentioned that Karabasangavda and Ramangavda referred to here belonged to the defendants' branch of the family, being the grandsons of Venkanagavda by his first wife, while Marigavda, as already stated, was the plaintiff's grandfather. The conclusions which the learned Judge based upon this document are set out in para. 58. He says that Marigavda cannot have been joint with the defendants' branch, because, if so, he would not have been shown as a subsharer in the watan. That appears to be correct. Prima facie the apportionment of these separate shares is inconsistent with the plaintiff's theory that the two branches formed one joint family. The learned Judge also infers that Marigavda must have already taken his share in the family property and suggests that the reason why he was content with a half share in one-third of the watan was that the title to the remainder, i. e., two-thirds standing in Rayavva's name was uncertain when he separated. This is more disputable. Exhibit 164 is an isolated document and we have probably not sufficient materials for determining its full significance. We do not know that there was any uncertainty as to the title to Rayavva's two-third. We do not know for certain that the family at that time possessed no other property besides this watan.
6. The lower Court's finding, however, is not based solely or even principally upon this document. It appears that, after the death of Venkangavda, the khata of the patilki lands stood in the name of Bharamagavda, one of his sons by his first wife, and after Bharamagavda's death, about 1808, the name of his brother Mallangavda was entered. Mallangavda died in 1843, and there was an heirship inquiry under Regulation XVI of 1827, in which the plaintiff's grandfather Marigavda and the latter's nephew Venkangavda asserted a claim to be members of the family entitled to share in the watan, a claim which was denied by the members of the elder branch. The result of the inquiry was that Bapugavda, the eldest son of Bharamagavda, was entered as khatedar. He died in the same year 1843 and there was another heirship inquiry in which apparently Marigavda and his nephew made no claim. Bapugavda's brother, Karabasanagavda was entered as khatedar. He lived until 1892 and was succeeded by his son Shivangavda who, however, died in 1893. In 1894 defendant No. 1 in this suit obtained a certificate of heirship as the adopted son of Shivangavda. There were formal Court proceedings with a proclamation and public notices. The plaintiff did not appear to oppose or make any claim, though he was then forty-four years old, having been born in 1850. In 1904 an inquiry was held in connection with the introduction of the Record of Eights. The plaintiff claimed to be entitled to Survey Nos. 46 and 78/2 and his claim was allowed. But he did not claim them on the ground that he was a member of a joint family with the defendants ; he claimed them as owner. Subsequently an attempt was made by defendant No. 1 to dispossess the plaintiff of these lands on the ground that he was a stranger to the watan, but the attempt failed. In 1910 the District Deputy Collector held the plaintiff to be a watandar. To be exact, the order, which is Exhibit 46, was : 'On the evidence it cannot be said that the alienee (i. e., the plaintiff) is a non-watandar.' It was then the plaintiff's turn and he attempted to remove the crop from a field in the possession of defendant No. 1. This led to criminal proceedings, which were compounded in February 1911 on the plaintiff's undertaking not to disturb the defendants' possession pending a decision of the dispute by the civil Court. The next event of importance was the present suit, though it was not filed till February 12, 1923.
7. The trial Judge relied on all these circumstances. He has also relied on certain admissions of the plaintiff and oral and documentary evidence showing separate enjoyment of properties, separate accounts, separate entries of houses and cattle in the census, and conduct inconsistent with any claim by the plaintiff to be a coparcener or any recognition of that claim. He has rejected oral evidence adduced by the plaintiff to show that he and his father used to manage the defendants' lands as unreliable and absurd in view of the proved history of the family. His finding that Marigavda had taken his share of the family property as it then was before 1843 is thus based upon the whole documentary and oral evidence and the probabilities arising from the prov-ed facts. As to these probabilities he says in para. 71 :
Plainiff admits that while the income of the lands in his possession was Rs. 200 per year, the income of the property in defendant's possession is Rs. 8,000 per year, vide Exhibit 136. Would plaintiff or his father and grandfather keep quiet by taking a potgi of an 1/40 share for nearly a century and keep other sharers in opulence if they formed coparceners of a joint Hindu family? Why should Marigavda take potgi when he was entitled to a share After the decision of 1843, Marigavda, Basangawda, or plaintiff did not ever allege that they were coparceners along with defendants; much less did they ever claim a share till 1911, when plaintiff flushed up with the decision of the District Deputy Collector in his favour in the matter of his being a watandar, trespassed upon defendants' land and was at once prosecuted. What does this long silence from 1843 till 1911 suggest It clearly shows, as already held by me, that Marigavda had already taken his share, that be attempted to set up a theory of potgi in 1843 when defendants' ancestors wanted to oust him even from his share calling him their tenant and that the matter was dropped by both parties as soon as the Assistant Collector gave his decision about the khata in 1843.
8. In my opinion there is great force in this reasoning. But even if the Judge is mistaken in his view that something like a regular partition had taken place before 1848, even if we hold that on the materials now available it is impossible to say in what circumstances or on what terms this small fraction of the Arshanagodi watan was assigned to or usurped by the junior branch, that does not, in my opinion, materially affect the case. The issue is not whether the defendants prove a partition at any particular time or at all, but whether the plaintiff proves that he is a coparcener of the joint Hindu family consisting of himself and the defendants. Now, however the three mars came into the possession of the plaintiff's branch originally, it is a reasonable conclusion, I think, from the evidence taken as a whole, that since 1843 Marigavda's one and a half mars of land now in the plaintiff's possession have been held and enjoyed as separate property without any claim to a share as coparceners in the family property as a whole. In the heirship inquiry in that year Mallangavda's son Ramanagavda, and Bharamagavda's sons, Bapugavda and Karabasangavda, all gave evidence and all asserted that the watan property belonged exclusively to their branch of the family and that Marigavda and his nephew had no share in it. Karabasanagavda stated that the latter were tenants of the watan lands in their possession. Mr. Tuljapurkar has disputed this interpretation of the statements Exhibits 101, 38 and 103, but I agree with the trial Judge that this is the only meaning which can fairly be attached to them. Marigavda and his nephew no doubt asserted that they were still members of the family and heirs of Venkanagavda, but, as the Judge says, the natural inference from subsequent events is that the claim then made must have been abandoned. Mr. Tuljapurkar has argued that it was not necessary for the plaintiff and his predecessors to assert any claim in the various heirship inquiries after May 1843, because they were only concerned with the question who was to be shown in the revenue records as representative watandar and the orders did not decide any question of title. He relics on Nirman Singh v. Lal Rudra Partab : (1926)28BOMLR1409 and on cases such as Sangapa Malapa v. Bhimangowda Mariapa (1873) 10 B.H.C.R. 194 as to entries in the Collector's books not affecting title. But the Privy Council case has no appliction here. There the persons sought to be excluded by entries in a register kept for fiscal purposes had admittedly been in joint enjoyment of the estate. The plaintiff's case here would stand on an entirely different footing, if there had been any similar recognition of joint status, The fact that his branch of the family was allowed to remain in possession of the two fields at Arshanagodi cannot be regarded as a recognition of joint status at all. That is a point which I shall develop further in dealing with the question of limitation. As for the watan proceedings being purely fiscal in character, that, at any rate, was no longer so after the Revenue Jurisdiction Act, X of 1876, enacted that orders under the Watan Act could not be called in question in the civil Courts. In my opinion it is quite reasonable to regard the silence of the plaintiff's predecessors after 1843 as an indication that they made no claim to share in the watan on the footing of coparcenership with the elder branch of the family : and as regards the properties enjoyed by the elder branch other than the Arshanagodi watan, I think we must accept the trial Judge's view of the evidence and hold that the plaintiff's branch never exercised nor claimed any rights in them at all until in 1911 the plaintiff took advantage of the finding that he was a watandar and forcibly carried off the crop from defendant No. 1's field.
9. The question then is what conclusion follows from these facts. The severance of joint status is a matter of individual volition. It may be effected by agreement. Sir Dinshah Mulla in his book on Hindu Law, 7th edition, page 395, cites this passage from the judgment of the Judicial Committee in the well-known case of Appovier v. Rama Subba Aiyan (1866) 11 M.L.A. 75:-.when the members of an undivided family agree among themselves with regard to particular property, that it shall thenceforth be the subject of ownership, in certain defined shares, then the character of undivided property and joint enjoyment is taken away from the subject-matter so agreed to be dealt with ; and in the estate each member has thenceforth a definite and certain share, which he may claim the right to receive and to enjoy in severalty, although the property itself has not been actually severed and divided.
10. The same principle must apply if joint owners, who for the sake of convenience are in possession of separate shares, agree among themselves to continue their separate possession on the basis of legal severalty. In course of time it may become impossible to prove such an agreement, which may indeed be tacit and not evidenced in any formal way. But where, as in this case, the known facts can only be explained by assuming that there has been either a formal partition by metes and bounds or a tacit agreement to separate, the Court is justified in assuming that partition has been effected in one way or the other, although, owing to lapse of time, it is impossible to prove by definite evidence how and when it happened.
11. In Moro Vishvanath v. Ganesh Vithal (1873) 10 B.H.C.R. 444 Mr. Justice West says (p. 450) :-
But though no such partition as this by mere operation of law is known to the Hindu system, it is equally clear that that system, like the English, respects an existing possession peaceably acquired, and raises, after the lapse of a considerable time, the presumptions by which it can be supported.
12. Then, after a discussion of the texts, he says (p. 452) :-
The result seems to be that as a co-sharer may, by neglecting to assert his right, cause a presumption to arise, which cuts him off from participation altogether and makes him a divided member without any share in the family property ; so a fortiori a similar neglect may cut him off with what he happens to possess, unless there has been some exercise or admission of reciprocal rights as to the several parcels of the property within so recent a period, that the presumption of separate ownership cannot, under the circumstances, reasonably be raised. An undisputed assertion of proprietary rights extending to the property actually possessed by other descendants from the common ancestor, will show that the several parcels are still held as shares of a common property. In the absence of such an indication, sole possession by several members of separate parcels may reasonably be taken in accordance with the ordinary presumption as proof of separate ownership.
Further, at p. 453 there is the passage frequently cited :-
It is a recognized principle that, when a Hindu family has once been proved to have been joint, it lies on those who assert a subsequent separation to prove it. The state of things shown to have existed is presumed to have continued, until the contrary be shown. But it is not inconsistent with this doctrine, and is, indeed, obvious that, as the course of nature itself brings about inevitable changes in a family, the presumption is one which grows weaker at each stage of descent from the common ancestor. Brothers are for the most part united ; second cousins are generally separated. After a considerable lapse of time, testimony of the precise terms on which a partition was effected, and of the precise time at which it was made, will, in most cases, be wanting. The presumption that the old state of things continued, is, at some point, met by the presumption that the present state of things had a legal origin...
13. This case was approved of by the Privy Council in Yellappa v. Tippanna (1928) 31 Bom. L.R. 240 Referring to the passage which I have just cited from Moro Vishvanath v. Ganesh Vithal their Lordships say (p. 255):-
The proposition is indeed one which speaks for itself apart from judicial authority. When it appears from facts that through generations a property has been possessed in a, certain single line, it can never be said that it lies upon that line to establish that it was dissociated generations ago from another line which appears on the scene as a claimant and propones no facts of jointness, such as living in the same home, sharing in food or worship, or quoad estate participating in the enjoyment or fruits thereof.
14. The learned trial Judge has also cited three decisions from the Printed Judgments of 1883 : Tatya v. Anaji (1883) P.J. 259 Vithoba v. Narayan (1883) P.J. 262 and Lachiram v. Uma (1883) P.J. 285 These cases are also apposite and to the same effect.
15. I hold for these reasons that the burden of proof on this issue has been rightly thrown on the plaintiff, that he has not discharged it, and that the trial Court's finding that he is not a coparcener with the defendants is correct.
16. That finding is enough to dispose of the suit. But the lower Court has held, also in my opinion rightly, that the plaintiff's claim would in any case be barred by limitation. He and his predecessors have never been in possession or enjoyment of any of the properties in suit, except the two Arshanagodi fields, since 1843 when the defendants' predecessors openly asserted their exclusive claim. Prima facie that is more than enough to justify a finding that they have been excluded from any share, and to bar the suit under Article 127 : see Gangadhar v. Parasharam (1905) 7 Bom. L.R. 252 It has been urged that their possession and enjoyment of the two fields at Arshanagodi, which admittedly formed part of the joint family property at one time, saves the bar of limitation in respect of the properties in suit. That argument is negatived by Vishnu Ramchandra v. Ganesh I.L.R. (1895) Bom. 325 where it was held by Farran C.J. and Strachey J. that the fact that the plaintiffs were not excluded from their share in a part of the joint property did not prevent Article 127 of the Indian Limitation Act from operating in respect of another part from which they had been excluded to their knowledge. The judgment does not give reasons for the finding on this point, which, it appears, was not pressed, But a reference was made to Budha Mal v. Bhagwan Das (1886) P.R. No. 86 of 1886, and the judgments in that case contained, if I may say so with respect, full and cogent reasons. But Vishnu Ramchandra v. Ganesh has been dissented from by the Madras High Court in Kumrappa Chettiar v. Saminatha Chettiar I.L.R. (1918) Mad. 431 and Mr. Tuljapurkar contends on the authority of that case that the view taken by this Court is contrary to the decision of the Privy Council in Sri Raja Lakhshmi Devi Garu and Sri Raja Surya Narayana Dhatrazu Bahadur Garu I.L.R. (1897) Mad. 256 Their Lordships of the Judicial Committee held in that case, according to Seshagiri Ayyar J., that so long as there was no total exclusion of the claimants there can be no adverse possession in favour of persons holding portions of the property, while the learned Chief Justice in his concurring judgment laid down the proposition in this way, that to bar the plaintiff there must be exclusion from the whole of the joint family property and that exclusion from the suit property only will not do. These are not quotations from the decision in Sri Raja Lakshmi Devi Garu and Sri Raja Surya Narayana Dhatrazu Bahadur Garu, for no such expressions occur in Lord Davey's judgment. They are the learned Judges' views of the effect of that judgment. The facts in that case are thus summarised in the headnote :-
The last zamindar having died without issue in 1888, his widow was in possession when this suit was brought by a male collateral descended from a groat grandfather common to him and to the last zamindar. The plaintiff claimed to establish his right as member of an undivided family holding joint property against the widow who alleged that her husband had been sole proprietor. In proof of this she relied on certain arrangements as having constituted partition, viz,, that in 1816, two brothers, then heirs, agreed that the elder should hold possession, and that the younger should accept a village, appropriated to him for maintenance in satisfaction of his claim to inherit : again, that in 1866, the fourth zamindar compromised a suit brought against him by his sister for her inheritance, on payment of a stipend to her, having already, on the claim of his brother, granted to him two villages of the estate ; and, by the compromise, this was made conditional on the sister's claim being settled ; again, that in 1871, the fourth zamindar having died pending a suit brought against him to establish the fact of an adoption by him, an arrangement was made for the maintenance of his daughter, and two widows, who survived him, the previous grant for maintenance of his brother holding good, the adoption being admitted, and the suit compromised.
17. The finding was that there was nothing in the above which was inconsistent with the zamindari remaining part of the common property, and that the course of the inheritance had not been altered. Dealing with the settlement in 1816 Lord Davey said (p. 265) :-
Their Lordships do not find any sufficient evidence in the arrangement made by these documents of an intention to take the estate out of the category of joint or common family property so as to make it descendible otherwise than according to the rules of law applicable to such property. The arrangement was quite consistent with the continuance of that legal character of the property. The elder brother was to enjoy the possession of the family estate, and the younger brother accepted the appropriated village for maintenance in satisfaction of such rights as he conceived he was entitled to. In the opinion of their Lordships it was nothing more in substance than an arrangement for the mode of enjoyment of the family property which did not alter the course of descent.
18. Similarly at page 268 we find
On the second point their Lordships agree with the Courts below that the course of descent of the zamindari was not altered by the compromise of 1871;...
19. The plea of limitation was disposed of very briefly by stating that (p. 268):-
There has been no denial of the title of Janardhana and his family or exclusion of them from the estate.
20. In Lakshman Dada Naik v. Ramchandra Dad I.L.R. (1880) Bom. 48a Naik, another Privy Council case relied upon by the learned Judges of the Madras High Court, the plaintiff, who claimed a share in joint family property, had been in possession of a family house since 1858 and this house had been treated on two occasions, once when there was a family arrangement resulting in the separation of one of the sons and again when the father made his will, as continuing to be joint family property. It was held that that saved the bar of limitation. Their Lordships said at page 60 that there had not been a total exclusion from the joint family estate as a whole. They did not themselves lay this down as a criterion. They referred to a case in which it had been suggested that this was necessary to lay the ground for the application of the statute, and said that if so there had been no such exclusion on the facts of the case.
21. So far as these cases are relevant at all on the particular point of limitation which we are considering, the principle which, in my opinion, really underlies them and the other cases cited in Kumarappa Chettiar v. Saminatha Chettiar is that a joint owner cannot be said to be excluded from the joint estate if he has had such possession or enjoyment of part of the property as implies or is consistent with a recognition of his joint ownership of the estate as a whole. With the greatest deference to the learned Judges who decided Kumarappa Chettiar v. Saminatha Chettiar, I cannot find any support in these cases for the proposition which they have laid down, if it means, as it seems to mean, that possession of any part of the joint property, however small, by a member of the family is necessarily enough to preserve his right to share in the other properties though he has in fact been excluded from them. Nor can I find any inconsistency between the cases referred to and Vishnu Ramchandra v. Ganesh.
22. Turning to the facts of the case, all that the plaintiff has succeeded in showing is that his branch of the family had some connection with the Arshanagodi watan. He has completely failed to prove his case that the two fields Survey Nos. 46 and 78/2 were assigned to his branch of the family for maintenance. In 1844, if the jamabandi chithi Exhibit 164 can be relied upon, his grandfather was recognised as holding a sub-share, two annas eight pies, in the watan. In 1856 his mother Mallavva made a statement Exhibit 154 in which, while agreeing to the continuance of Karabasanagavda as Patil, she claimed to be a sub-sharer in the watan under him.' It does not appear that there has been any recognition of such a sub-share in the watan register since the date of Exhibit 164. But supposing it could be held that the plaintiff's branch is entitled to a sub-share in the watan, that would obviously be no evidence of joint status as between him and the other watandars. It would rather negative it, for, if a watan belongs wholly to a joint family, there is no room for sub-sharers. It is really a stronger point for the plaintiff that the two fields, which he was separately enjoying, appear to have been shown in the watan register after 1843 as though they still formed part of the watan. This may have been due to the absence of any contest in the inquiries after 1843. It may show possibly that the elder branch maintained their claim to be the owners of these fields. But, in my opinion, it certainly cannot be held to show that the defendants recognised the plaintiff's branch as being joint with them. So far as the rest of the property is concerned, it has all along been exclusively enjoyed by the defendants in a manner incompatible with the plaintiff's claim to be a coparcener. I, therefore, agree with the lower Court that the claim is barred by limitation.
23. In my opinion the appeal fails and should be dismissed with costs. The appellant must pay the Court fees.
24. I agree. My learned brother has dealt exhaustively with the facts of the case and I have nothing to add. I think the conclusion reached by the learned First Class Subordinate Judge, as expressed in paragraph 73 of his judgment, that Marigavda had taken his share in the then family property before 1843 is correct. In my opinion, on the facts of this ease, it was not strictly necessary nor was it possible for the Court to record a definite finding as to when and how the separation was effected. The sole question for determination was whether the plaintiff proved that he was a coparcener of the joint family consisting of himself and the defendants and whether the properties in the possession of the defendants were joint ancestral property in which he had a share. The learned Judge recorded a finding in the negative on both these issues and has written a careful and exhaustive judgment dealing with the facts of this case. Having regard to the circumstances mentioned by him in paragraph 71 of the judgment and the fact that since 1843 the defendants' branch denied the title or the right of the plaintiff's branch to the patilki office of the village of Arshanagodi and the whole of the watan in that village, and the further fact that since then the defendants' branch continued in exclusive possession and enjoyment of this property as also the other property in the village of Benkankop since its acquisition, establish a prima facie case of exclusion or ouster of the plaintiff's branch from the enjoyment of the property. Then the fact remains that in spite of this active, hostile and open assertion of the claim to possession of all the property to the exclusion of the plaintiff's branch, no steps were taken by Marigavda or his descendants to establish their right to any of the properties in the exclusive possession of the defendants' branch at a time when evidence was more easily available than at present. This is a circumstance of great importance indicating that no such attempt was made because of the belief of the plaintiff's ancestors that they never had any title or claim to such properties.
25. This brings me to the question of limitation. Apart from anything else, it is clear on the authorities that long and exclusive possession of property by one person is evidence of the exclusion of another and the man who is out, has to make out a prima facie title and establish either an agreement or some jural relation to account for the exclusive possession of his opponent, or that the situation was due to any accidental circumstances such as, for instance, situation of the properties, of the residence of the parties and so on. In this case no such attempt was made on behalf of the plaintiff to prove that, what appeared to be the exclusive possession of the defendants was not exclusive possession at all but, was a possession on behalf of himself and the other members of the family, and having regard to this fact and his own admissions, it seems to me to be clear that this is a case of clear exclusion of the plaintiff from what he alleges to be the joint family properties.
26. The learned advocate on behalf of the appellant has, however, argued that his client has been in possession or enjoyment of two survey numbers in Arshanagodi village, that these survey numbers formed part of the joint family property and that these facts took the case out of Art, 127 of the Indian Limitation Act, At the outset I am not satisfied that the plaintiff has succeeded in proving that at the date of the suit these two survey numbers formed part of the property of the only joint family which the defendants admitted. The plaintiff's admissions as well as the evidence show that he and his ancestors have been dealing with these two survey numbers as if they were the owners thereof. It is true that in 1843 it was alleged by Marigavda that he was in possession of these two survey numbers for his maintenance. But beyond his word there is nothing on the record to support this case. It is true that the plaintiff alleged in the suit that these two survey numbers continued to be held by his branch for the maintenance of the members belonging to it. As to this, again, there is no evidence except his allegation. There is no record. That fact was never recorded in the proceedings after 1843 which took place between the parties or recorded in the inquiries held by the revenue authorities. The plaintiff's evidence on this point has been disbelieved by the learned Judge, and I see no reason to differ from him.
27. The plaintiff made a feeble attempt to show that these survey numbers were held by his branch as joint family properties by stating that they were cultivated and managed by Karabasangavda during his minority and that he was paying assessment with regard to it. On the question of assessment, however, he had to admit that the assessment was paid by him eight or ten years at least prior to the suit. He further stated that he was living with Karabasanagavda, during his (plaintiff's) minority but it does not follow that, because a minor boy belonging to the family is brought up by another member of the family during his minority, that status of jointness continues as between him and the other members of the family.
28. But assuming, however, that these two fields are joint family properties, what is the position The learned counsel for the appellant says that as his client has been in possession of two of the family properties, his claim to partition of the joint family property in the possession of the defendants will not be barred by limitation, even if the defendants prove that they have been in exclusive possession of the property for more than twelve years before the suit. He further says that the exclusion necessary to raise the bar of limitation under Article 127 is total exclusion, that is to say, exclusion from the whole of the joint family property. The question thus raised came up for decision before this Court in Vishnu Ramchandra v. Ganesh I.L.R. (1897) Bom. 325 and it was answered in the following words (p. 828):-
The fact that the plaintiffs were not excluded from their share in other fields does not prevent...the statute from operating in respect of the field from which they have been excluded to their knowledge.
29. I respectfully agree with that view.
30. But Mr. Tuljapurkar relies on a decision of the Madras High Court in Kumarappa Chettiar v. Saminatha Chettiar I.L.R. (1918) Mad. 431 in which the Madras High Court has taken a different view and dissented from Vishnu Ramchandra v. Ganesh. The head-note of that case runs as follows :-
Where a member of a Hindu family who is divided in status from others is in enjoyment of some portion of the family properties, while others enjoy other portions, ha is not in law excluded or ousted from those other portions, so as to disentitle him to his share of those portions, however long their enjoyment by others.
31. In my opinion the head-note states the law correctly and no exception can be taken to it. But I think the actual decision of the learned Judges, as it appears from their judgments, goes beyond the proposition contained in the head-note. Mr. Justice Sheshagiri Ayyar held that there was no total exclusion of a coparcener, even if another coparcener is in separate and exclusive possession of a portion of the joint family property. The learned Chief Justice put the proposition in this way (p. 438):-
If the property was undivided and Article 127 is applicable, I entirely agree with him that to bar the plaintiff there must be exclusion from the whole of the joint family property and that exclusion from the suit property only will not do.
32. The principal judgment of the Court was delivered by Mr. Justice Seshagiri Ayyar, and apart from the history as to the law of limitation, which luckily is not necessary to examine in this case, the learned Judge relies upon two Privy Council decisions in support of his view. The principal case on which the learned Judge relies is Sri Raja Lakshmi Devi Guru and Sri Raja Surya Narayana Dhatrazu Bahadur Garu I.L.R. (1807) Mad. 256 I am unable, with the greatest respect to the learned Judge, to see anything in the judgment of the Privy Council as supporting the proposition which he lays down. In that case, as appears from p. 258, the main question was whether the zamindari was the joint family property in the hands of the sixth zamindar, the widow's husband ; or had ceased to be joint family property by reason of certain acts, which were alleged by the defence to have had the effect of partition, and to have altered the course of descent, so that the zamindari had become the separate property of her husband, the last owner, and the answer to this question depended upon the effect of certain razinamas executed between the parties and their ancestors. The principal razinamas were two razinamas of 1871 which were executed as the result of a compromise of a suit between one Janardhan and one of the widows in 1871. Before dealing with the razinama, their Lordships at p. 264 stated the question for decision as follows :-
The real question therefore is whether it has ceased to be part of the joint property of the family of the first zamindar, or...whether there has been an effectual partition so as to alter the course of descent.
33. Then they considered certain documents executed between the ancestors of the parties in 1816 which do not seem to be very material, and at p. 266 referred to the razinama of 1871. They first stated the effect of the razinama which, to use their own words, was as follows:-
By this compromise Janardhana agreed that the plaintiff was the adopted son of his elder brother, that the right to the zamindari should pass to the plaintiff and that Janardhana should be enjoying or continue to enjoy...the villages of Vuddavolu and Addapusila attached to the zamindari which had been in his possession and enjoyment in accordance with the khararnama (this is the kararnama of 1816) executed in his favour by his late elder brother, and ho also agreed to the provision to be made for Ramachandra's widows and daughter.
34. On the construction of these documents their Lordships held that there was nothing in them inconsistent with the zamindari, even if impartible, remaining part of the common property. The question of limitation is disposed of in a few sentences at p. 268 in these words :-
Their Lordships also agree with the Courts below that the suit is not barred by the Law of Limitations. As between the appellant and the respondent the suit is not one for partition. The claim of the latter is not to hold jointly with the appellant, but to succeed adversely to her as one of the right heirs on the death of the last zamindar.
35. They further observed-and this seems to me to be very important-as follows (p. 268) :-
There has been no denial of the title of Janardhana and his family or exclusion of them from the estate.
36. The suit was not one for partition. Further their Lordships found that there was no denial of title of Janardhana or his exclusion from the estate, and it is difficult to see how this decision can be relied upon as supporting the view which is taken by the learned Judges in Kumarappa Chettiar v. Saminatha Chettiar. The other ease relied upon is Naik's case, Lakshman Dada Naik v. Ramchandra Dada Naik I.L.R. (1880) Bom. 48 In that case the facts were that the property consisted of a house at Sholapur and an ancestral business. The respondent quarrelled with his father, and the latter with his two other sons left the family house and lived at Belgaum. Sometime thereafter the respondent brought a suit for partition in Bombay, but on a demurrer the suit failed. The father died in 1872. On the evidence the Court held that the property in question was ancestral, and that the respondent had not received his full share of it. In dealing with the question of limitation their Lordships observed (p. 59):-
How do the facts on this part of the case stand The respondent was, unquestionably, a member of the joint family, with the full rights of a co-parcener, up to 1858. There is no suggestion of a formal partition between him on the one side and his father and brother on the other.
Their Lordships further found that the house at Sholapur was treated as joint property by the father and his other sons even after the father began to live separately and that the respondent continued to be a coparcener. On these facts their Lordships held that the case did not come within Section 1 of Act XIV of 1859. It appears that in the course of the argument an opinion of Mr. Justice Holloway in Govindan Pillai v. Chidambara Pillai (1866) 3 M.H.C.R. 99 was referred to and it was with reference to that opinion that their Lordships observed as follows (p. 60) :-
Nor has there been a total exclusion from the joint family estate, as a whole, if that, as suggested by Mr. Justice Holloway in the case above referred to, is necessary to lay the ground for the application of the statute at all.
37. It is clear that the question which we have to consider was not specifically raised. There was no suggestion in the case that the respondent was excluded from the joint family property or that there could be no exclusion because he was in possession of the house. On the other hand the facts found were inconsistent with the case of exclusion or ouster. In these circumstances it is difficult to see how Naik's case can be relied upon in support of the view which found favour with the learned Judges in Govindan Pillai v. Chidambara Pillai.
38. It seems to me that there is a clear distinction between mere possession and enjoyment of joint family property by one member of the joint family and an active denial of title by him of any other member of the family or an exclusion by him of the other. Ordinarily the possession of one member of a joint family is on behalf of and for the benefit of all the members of the family, and a joint family may continue in a state of coparcenery for as long as they please, even if, either by arrangement or owing to extraneous circumstances, such as residence in different places or situation of the properties in different localities or places, the members are in possession of separate properties. But when a member in separate possession of a property goes a step further and denies the title of another member of a joint family to enjoy or to participate in the profits of that property which he is holding separately, then it seems to me to be clear that it would be an ouster or exclusion of the other from such property and time would begin to run even if the case is that the latter is in possession of other joint family property or even if there is some other property which is admittedly joint. I am unable to see on principle what difference there is in a case of exclusion from the whole of the joint family property or exclusion from one property qua that property. I am not aware of any principle of Hindu law or general law which would support the proposition which is advanced by the learned Advocate for the appellant. To hold otherwise, separate and exclusive possession 'continued even for centuries would afford no security to property.' In my opinion the true principle is that there can be no exclusion if the separate possession of one person is consistent with a recognition of the right of another to claim a share therein. I think, therefore, the view taken by this Court, if I may say so with respect, is correct. In support of that view the learned Judges rely upon Budha Mal v. Bhagwan Das (1886) P.R. No. 86 of 1886, and there with regard to this question it was observed as follows at pp. 211-212 :-
39. As regards the question of limitation, I see no reason to think an exclusion from all ancestral property to be necessary to give rise to a bar by limitation. If this wore so, limitation could not run in any case when a member of the family held a small portion of the ancestral property, while much the greater portion was held by others, and the right to a partition was denied on the ground that the property was already held in separate ownership. So long as the property continues to be held as undivided family property, limitation will not run against a member who has not been excluded from his share ; but when the question is whether the property is in fact so held, there is no reason why limitation should not begin to run from the earliest date when the property can be shown to have been actually held by the person in possession adversely to the other members of the family. The circumstance that they may hold other property which, if they claim a partition, they must allow to be brought into the partition, does not appear to be material. What is to be considered is the property out of the plaintiff's possession in which be claims a share, and as I find that the exclusion from a share in this property was known to the plaintiff's father at latest in 1854, and probably years before, the plaintiff's claim is barred, whether Article 127 or Article 144 of the second Schedule should be applied. The only exception is the land at Bela Basti Ram in which the plaintiff's title was admitted in 1888 during his minority, and to which it does not appear that Rattan Chand, who survived till December 1872, over asserted an exclusive right.
40. I agree, therefore, with my learned brother that the appeal must be dismissed with costs.