1. The question which arises in this appeal is one of adverse possession under Article 144 of the Limitation Act. The facts shortly are : the lands in dispute belonged originally to the plaintiffs and defendant No. 1 as members of a joint Hindu family. Defendant No. 1 held possession of them on behalf of himself and his co-parceners till 1880 when he sold the property to defendant No. 2. But defendant No. 1 continued in possession and passed a rent-note in favour of the 2nd defendant, his vendee. The question is whether this suit for partition which was brought in the year 1906 is barred by reason of the adverse possession of defendant No, 2 from the date of his sale.
2. Now it is true the question of adverse possession between co-parceners inter so is governed by Article 127 of the Limitation Act. But Article 144 applies where the question is as between a co-parcener in a joint Hindu family and a stranger to it. If a co-parcener has alienated property belonging to the family, so as to exclude other co-parceners from it, adverse possession in favour of the alienee begins to run from the date of the alienation and the consequent exclusion of the coparceners. In the present case defendant No. 2, the alienee, did not go into possession but allowed defendant No. 1, his vendee, to continue in the character of tenant under him. It is argued that that constructive possession entitles the second defendant to reckon the period of adverse possession from the date of his sale. But the objection in law to that argument is this:-Before the alienation defendant No. I had held possession for himself and his co-parceners. His possession was, therefore, more or less of a fiduciary character, and it was the possession of all. It could not begin to be adverse without intimation .by the co-parcener in possession conveyed to the other co-parceners that he intended to exclude them. So long as defendant No. 1 was in possession, notwithstanding his sale to defendant No. 2, his co-parceners would have no reason to suppose that he held adversely-and intended to change the original character of that possession. Defendant No. 1 could not hold for both his co-parceners and defendant No. 2. Therefore, for adverse possession to run from the date of the sale, it was necessary for either of the defendants to do something to change the character of defendant No. 1's possession, and that to the knowledge of the co-parceners excluded. Defendant No. 2's title was merely on paper, and he could not rely upon the possession of defendant No. 1, as that of his tenant, because side by side with that there was the undisturbed possession of defendant No. 1 as the agent of his family.
3. Therefore, the character of the possession of defendant No. 1 being of an equivocal character, there was nothing on which adverse possession could operate. The law is that the Court is always too loath to hold adverse possession proved where the possession is equivocal in character : Lallubhai Bapubhai v. Mankuvarbai ILR (1876) 2 Bom. 388.
4. On these grounds the decree of the Court below must be reversed and the case sent back for disposal on the merits.
5. Costs to be costs in the appeal.
6. I am of the same opinion. It seems to me to be impossible to hold that the plaintiffs can be prejudiced by reason of the fact that a deed of sale was executed behind their back by their agent, the first defendant, in favour of a stranger, the second defendant. In spite of this deed of sale, there was no transfer of possession, but possession remained, as uptil then it had always been, with the first defendant who is the agent of the plaintiffs in that behalf. There was nothing in these circumstances to put the plaintiffs on notice that any change of possession had occurred, or that their title was in any way imperiled. As was said by Mr. Justice Batty in Tarubai v. Venkatrao ILR (1902) 27 Bom. 43, to constitute an adverse possession against the real owner possession must be in some way or other ostensibly adverse. In this case the possession remained ostensibly that which it had always been, with the result that the purchaser's possession was not adverse to the plaintiffs.