1. This is an unusual case, being a suit for partition filed by an original member by birth, of the family whose property is sought to be divided, admittedly however given in adoption to another branch of the family, and so becoming a stranger to his family of birth. [After setting out the pedigree as above, his Lordship proceeded :]
2. The family property has been classified into lots A. B. C. D. E.
3. About lot 'A' there is no further dispute. It was not family property, but the stridhan of Dhondu's wife who, it has been held, gave it half and half to her son Daso, and her son given away in adoption Jivajee, and the finding that the will had been proved was accepted in this Court. Properties B and C have the same character, 'being ancestral, and have only been made into two lots because they comprise land in two villages, Khangaon and Kalloli. Property D includes four survey numbers in a third village, Durdundi, and property E comprises certain rights arising out of alienated land at a fourth village, called Mallapur.
4. As to the family circumstances, Dhondu, plaintiff's father and defendant's grandfather, died in 1889. The plaintiff must-have been given in adoption before that year. Daso, ddefendant's father, died in 1911. The defendant was born in 1876 and must have been a minor when Dhondu died in 1889, to which date the relevant facts go back. Apparently, though plaintiff was given in adoption to Yeshvant of another branch of the family, the property he acquired from his adopting father was very small. The story is that Dhondu, on his death-bed, directed that the plaintiff should be given his share of the family property, as if he had remained one of its members and that Dhondu's direction was learned out by his son Daso, and ultimately acquiesced in by dependant, until defendant's estate came under the Court of Wards in 1914, from which data the matter has been disputed. Lots B. C. D. E. being ancestral family property, and plaintiff in 1889 technically a member of a separated family, it is clear that Dhondu's direction could give plaintiff no title to (he property. There seems to be no doubt however on the evidence, that the parties lived together, and dealt with most of the family property as would the members of a joint family, and the real question is whether plaintiff's possession and enjoyment of this property was on the basis of a license which could not suffice to give him any rights, or otherwise so as to give occasion for the acquisition of rights by prescription in the joint property. Plaintiff never had any separate possession and the position therefore is that of the acquisition by adverse possession of a share in joint family property by means of what was really a tenancy-in-common.
5. It is clear that Daso, on his father's death acquiesced in the arrangement that plaintiff should have what would have been his share, had he not been adopted elsewhere. There was an heirship enquiry, in connection with the Watan land, and Daso made a statement Exhibit 89, on June 4, 1889, in which he said he and plaintiff were their father's heirs, he being the principal one as the elder, and also recited the directions given by their father.
6. In the case of all but a fraction of the property, there is much evidence of subsequent enjoyment in common. In 1897 plaintiff got a loan for land improvement from Government and mortgaged the family property at Khangaon, and in 1902 again mortgaged three of the same survey numbers for a second loan-Exhibits 59 and 60. On the second occasion in 1902, Daso made a statement admitting plaintiffs right to mortgage. In 1901 by Exhibit 82, all this property was rented for ten years by both brothers to a tenant, Daso presenting the document for registration. These exhibits are with reference to the Khangaon land. In the case of the property at Kallolli, there is a mortgage of the property in 1905 by the two brothers and a second one of 1909, relating to a part of this property, and plaintiff said he had been called upon to pay his share of the debt. There is also a rent ' note of 1908 for fifteen years, and a second rent note of 1911 in the plaintiff's favour. The learned Subordinate Judge has, on these materials, held that the plaintiff has been in possession from 1889 to 1913, and his conclusion is, I think, correct.
7. There is similar evidence in the case of the family property at Durdundi, described as ' D ' in the plaint, except in the cases of survey Nos. 44, 48 and 47. The evidence consists, in respect of survey Nos. 44, 48 and 55, of a ' Kararpatra ' or agreement, of two rent notes and of the depositions of throe witnesses. The ' Kararpatra' is substantially a lease for nine years, of July 17,1896, presented for registration by Daso.
8. The property classed as ' E ' in the plaint consists of ' inam ' rights. The plaintiff's share was admitted by Daso in 1889 in his statement already referred to before the Mamlatdar, and there is evidence which has been believed, that the plaintiff got his share of grazing and other foes as Inamdar, though Daso's name only appeared in the revenue records. Daso being the elder brother it would not be unusual for his name only to be shown.
9. I have recited the main facts as to this property and plaintiff's possession, though it was really unnecessary to do so for the evidence is clear and the points are not seriously disputed, the main one in appeal having been the point of law, though there are cross-objections as to the disallowance of a share in survey Nos. 41 and 47 of Durdundi. As to this the obvious fact is that there is no evidence showing plaintiff's possession and enjoyment, and the argument in his favour really depends oh an analogy, 'and the learned Subordinate Judge's reasons for disallowing the claim appear to us to be sound.
10. The position therefore is this : that the plaintiff in 1889 was i admitted to joint possession of the family property and remained in such possession to within the period of limitation for a suit. The circumstances in which he was admitted to such possession are also, I think, clear from Daso's statement of 1889, the basis was the oral will, said to have been made by Dhondu, admitted by Daso and obviously relied on by plaintiff for asserting his claim, though in, law it would not be a good foundation for it. Mr. Coyajee has relied on the cases of Keshav v. Govind : AIR1928Bom287 , Mulji v. Hiralal (1928) 31 Bom. L.R. 1067 Radhamoni Deli v. Collector of Khulna I.L.R. (1900) Cal. 943 and Kuthali Moothavar v. Peringati Kunharankutty The last case decides that for possession to become adverse it must be adequate to that end in continuity, publicity and extent, and I the one from Calcutta, that mere acquiescence is insufficient and that such possession must be proved to have been adverse.
11. I think these two decisions do not help the appellant's case appreciably. What is asserted is the adverseness of the joint estate to Daso and his sons' separate estate. On the facts, the assertion of joint estate continued from 1889 to 1913, was clearly public and to the knowledge of Daso and his son, and was as adequate as such a possession could be.
11. There remain the two cases in Keshav v. Govind and Mulji v. Hiralal, but the distinction between them and the present suit is really, I think, fundamentally one of facts. It is true, as laid down in Kuthali Moothavar v. Peringati Kunharankutty, that the owner of the title is in the better position, and that, an stated in Lallubhai Bapubhai v. Mankuvarbai I.L.R. (1876) 2 Bom. 388 the Courts are loath to, convert an originally lawful possession into an adverse one also, it may be conceded that the rule in Vithaldas v. Secretary of State (1901) 4 Bom. L.R. 28 is that adverse possession is displaced by evidence of partial possession by a party against whom the title by adverse possession is claimed. This last case would not seem to apply where a joint possession is made out against a person entitled to separate possession, and the two later Bombay Law Reporter cases are really based on a finding that a licensee as such, without something further, does not acquire a title by adverse possession. In Keshav v. Govind there was leave, or license, and in the case reported in Mulji v. Hiralal the contest was between collaterals, both of whom held as of right, though one held an unduly largo share. But the authority which appears to us to be really in point, and the case in which the rule t is based on closely adjacent facts, is that of Vasudeva Padhil Khadanga Guru v. Maguni Devan Bakshi Mahapatrulu Garu I.L.R. (1901) Mad. 387 The facts there were that the joint family had obtained a grant in favour of one of its coparceners, by name. On the death of the grantee, the property so assigned was treated as joint family property by the widows of the original two coparceners over a long period of years, and though the High Court had found that the grant had been to the family, their Lordships of His Majesty's Privy Council considered that, even on the assumption that the grant had been to the grantee individually, exclusive possession of the defendant having been discontinued in favour of the joint estate as claimed by the plaintiff in that case, the possession of the joint estate became adverse to the separate one.
12. The doctrine is that possession of a joint estate is adverse to any claim to such an estate as a separate one, and that possession by a joint family may by lapse of time become adverse to a separate estate.
13. It is true that in the present case the plaintiff is technically not a member of the joint family but the facts appear to us to amount to an assertion of title from 1889 to 1913, and since that assertion was enforced by joint possession of the property, as found by the learned Subordinate Judge, over a long period con-tinned to a point within limitation of this suit, we think the principle must apply, and that the plaintiff has rightly been given a decree.
14. There is no particular force in the cross-objections. It appears from line 58 on page 5 of the printed judgment that Daso also had other land, 'which was separately held and about which no admission was made.
15. We are not also inclined to interfere with the learned Judge's order as to costs. The original Court's decree is confirmed and this appeal is dismissed with coats,
16. I concur and have nothing to add.