1. In this case I have to decide whether the purchaser of a property from the managing member of a coparcenery and his minor nephew, (the minor purporting to be represented by his mother and by the said managing coparcener), obtained a valid title to the property in the events that have happened.
2. It was argued that Section 41 of the Transfer of Property Act was applicable in favour of the purchaser, who had acquired the property from an ostensible owner; that the transfer was for consideration ; that the transferee had taken reasonable care to as certain that the transferor had power to make the transfer and had acted in good faith. This point was not taken in the first instance. It is not raised in the pleadings and issues. It cannot be allowed to be raised at this stage : DeSilva v. DeSilva (1903) 5 Bom. L.R. 784 and Mulji Jetha & Co. v.Macleod (1903) 5 Bom. L.R. 991.
3. Next, it was argued that the appellant had acquired the property by adverse possession. The appellant is a stranger to the family who acquired the property on March 15, 1917, from another stranger to whom the property had been sold on March 15, 1904. It was held by a full bench of the Bombay High Court in Bhavrao v. Rakhmin ILR(1898) 23 Bom. 1. that Article 127 of the Indian Limitation Act does not apply where a stranger has acquired the property. Such analienee who has been in possession for more than twelve years is not to be deemed a person who has excluded his coparceners from joint family property : Article 127 ; a claim for partition against him is not to be considered-as between him and his vendor's coparceners-to be a suit for enforcing a right to a share in joint-family property; nor is it necessary for him to prove when first the exclusion becomes known to the plaintiffs (thecoparceners of his vendors) in order that time may begin to run in his favour: time begins to run as soon as his possession becomes adverse. On the authority of this case it has been held in Muttsami v. Ramakrishna ilr (1889) Mad. 292 that where a coparcener sells a specific portion of the joint holding, which portion is in his possession, and possession of that portion is immediately delivered to the purchaser, the possession of such purchaser is adverse to the other coparceners, from the moment of the purchaser's entry. A similar decision was arrived at in Anwar v. Kishen Singh(1922) 71 I.C.171, air (1922) Lah. 205 where the cases are collected.
4. It was urged for the respondent that the purchaser in such & case must be considered as stepping into the shoes of the coparcener, and holding no different position from a coparcener; and that Article 127 must be applied to him. That article refers to a right to share in joint-family property from which there has been exclusion. But as stated in a judgment to which Muttusami Ayyar, J. was a party, Muttusami v. Ramakrishna ilr (1889) Mad. 292 :-
Coparcenery as recognized by Hindu Law, can only subsist between the members of a joint Hindu family, and the contention that the possession of one coparcener is the possession of all for purposes of limitation can have no application as between a purchaser from one of the coparceners and the other members of the family This view is also in accordance with the case of Ram Lakhi v. Durga Charan Sen ILR (1885) Cal 680.
5. Assuming that the principle underlying Article 127 is applicable, the question becomes, whether, when a stranger takes possession of property under such a conveyance as I am considering, he is not to be taken as excluding all coparceners to their knowledge. It seems to me that it is reasonable to proceed on this basis. In Munia Goundan v. RamasamiChetty ILR (1918) Mad. 650 Sadasiva Ayyar, J. (though in connection with Article 126, which is of course materially different) explained the reason why ' an overt and patent fact, namely, the taking of possession of the property by the alienee,' must be considered in certain cases to be ' the event from which the period has to be calculated' : the reason is 'to avoid as far as possible difficult questions as to notice,'-or, I may add with reference to this case, to avoid throwing on the holder of long possession an unnecessary burden. The case of a stranger holding possession on his own behalf is materially different from that of a coparcener or of some person who may steal into the shoes of a coparcener, and take exactly the same position as a coparcener. The position of such a purchaser with reference to the coparceners of his vendors is explained also in Bhavrao v. Rakhmin ILR (1898) 23 Bom. 137,F.B.. as he enters as owner and in right of his conveyance, his possession is adverse to themalso... He, entering as owner, his possession must, we think, necessarily be adverse to the true owners p. 1411., In favour of such a holder limitation begins to run from the date of his possession, provided the true owner is not under disability and is capable of suing.'(p. 142).
6. For these reasons it seems to me that the lower Courts have erred in holding that the appellant did not establish his case to hold the property by adverse possession.
7. Accordingly this property (S. No. 42) will be allowed to be retained by defendant No. 3. The suit as regards possession of the property will be dismissed. I have in the course of the arguments indicated why I make no order as to costs. The parties will bear their own costs throughout.