1. This is a suit brought by the plaintiffs, daughters of Joomabhai who died in the year 1907 leaving a widow Fulbai who died on February 6, 1910, and a son Chhotubhai who died on November 2, 1917. Chhotubhai died leaving defendant No. 1 his widow, two daughters, defendants Nos. 4 and 5, and a son Rasulbhai who died after Chhotubhai in the year 1917, leaving a son Huesein who died on June 20, 1924, and two widows, defendants Nos. 2 and 3, The plaintiffs claim 3/5th share in the properties belonging to Joomabhai, The extent of the share is not denied and the plaintiffs' suit is contested principally on the ground of limitation. The learned Subordinate Judge dismissed the plaintiffs' suit holding that the suit was barred by limitation. The learned District Judge reversed the decree of the lower Court and remanded the suit for disposal on the merits holding that the suit was not barred by limitation.
2. It is urged on behalf of the defendants, firstly, that Article 123 of the Indian Limitation Act applies, and, secondly, that, if Article 144 applies, the claim of the plaintiffs is beyond time.
3. On the first question as to whether Article 123 applies, we think that Article 123 is restricted to suits where a share is sought to be recovered as such from a person who legally represents the estate of the deceased either as executor, administrator or otherwise, and who is bound by law as such representative to pay or deliver the share. The appellants rely on the decision in the case of Shirinbai v. Ratanbai I.L.R (1918) Bom. 845: 21 Bom. L.R. 384. and particularly on the remarks of Macleod J. at pages 860 and 861, and the ruling of the Privy Council in Maung Tun Tha v. Ma Thiti (1916) L.R. 44 IndAp 42: 19 Bom. L.R. 294. and the decision of the Madras High Court in Rajah Parthasarathy Appa Rao v. Rajah Venkatadri Appa RaoI.L.R (1922) Mad 190 on appeal In the subsequent decisions of this Court in Kallangowda v. Bibishaya : (1920)22BOMLR936 . and Nurdin v. Umrav Bu : AIR1921Bom56 . Sir Norman Macleod was of opinion that Article 144 would apply where a suit is brought by a Mahomedan sharer to recover his share of the immoveable property from the person in possession of such property, Fawcett J. in Nurdin v. Bu Umrao expressed the view that the decision of the Privy Council in Maung Tun Tha v. Ma Thit, which related to the right of succession of the eldest son under the Burmese Buddhist law to be asserted not within a certain limited period of time but within the period of limitation, did not really decide the point as to whether Article 123 of the Indian Limitation Act applied to a case of a Mahomedan suing to recover his share from a person in possession or management of the property, and preferred to follow the earlier Privy Council decision in Mahomed Riasat Ali v. Hasin Banu I.L.R (1893) Cal. 157. and held that the word 'distribution' has a peculiar meaning of distribution of an estate which has vested in an executor or administrator. The Madras case of Rajah Parthasarathy Appa Rao v. Rajah Ven Jeatadri Appa Rao and VenJeatadri Appa Rao v. ParthaaaratM Appa Rao refers to a suit to recover a legacy, and to such a suit Article 123 would clearly apply. The view of the Madras High Court in the earlier Full Bench decision in Khadersa Hajee Bappu v. Puthen Veettil Ayissa Ummah I.L.R (1910) Mad, 511. was followed by this Court in Maktumawa v. Allama (1919) S.A 108 decided by Scott C.J. and and Hayward J., on February 25, 1919 (Unrep). and is consistent with the decision of this Court in Kashav Jagannatk v. Narayan Sakharam, I.L.R (1889) Born. 236. The same view was taken by the Calcutta High Court in Ahidannessa Bibi v. Isuf Ali Khan I.L.R (1923) Cal. 610. The decision in Nurdin v. Umrav Bu waa followed by this Court in Maleh Fatemiya v. Malek SardarJchan (1928) Cross Appeal No. 276 of 1925, decided by Patkar and Baker JJ., on January 31, 1928 (Unrep.) We think, therefore, that we should follow the decision in Nurdin v. Umrav Bu and hold that Article 123 would not apply to a suit such as the present to recover a share by a Mahomedan heir from a person in management of the property. It would, therefore, follow that Article 144 would apply.
4. The plaintiffs are co-sharers and their suit would not be barred unless it is proved that there was an ouster or adverse possession on the part of the defendants. In Gobinda Chandra Bhattacharjee v. Upendra Chandra Bhaitacharjee I.L.R (1919) Cal 274. it was held that mere non-participation in rents and profits would not necessarily of itself amount to an adverse possession; but such non-participation or non-possession may, in the circumstances of a particular case, amount to an adverse possession, and regard must be had to all the circumstances and a most important element is the length of time. A similar view was taken in Gangadhar v. Parashram I.L.R (1905) Bom. 300: 7 Bom. L.R. 252. where length of possession and non-participation of profits extended to a period of forty or fifty years, and it would be permissible for a Court of facts to draw an inference that there was an ouster from non-participation of profits for a period extending to forty or fifty years. In the present case the period is seventeen years, and the learned District Judge has considered the whole evidence in the case and has come to the conclusion that there was no ouster of the plaintiffs so far as their interest in the property was concerned. Plaintiff No. l's a son, Exhibit 36, deposed that he was brought up in the family, and defendant No. 1, when examined, was not prepared to deny the right of the present plaintiffs. It has been found that plaintiff No. 2, who had lost her husband during the lifetime of her father, used to reside in the family housa and the other plaintiffs occasionally went and resided in the family residence. Small suma of money were paid to the plaintiffs from time to time by Chhotubhai and Jivi. The plaintiffs never asserted their right to the share of the property or the income, nor was their right ever denied by the defendants. The explanation given by plaintiff No. 1's son that nothing was done because Jivi was managing the property was not held convincing by the learned District Judge. On considering the whole evidence, the learned District Judge has come to the conclusion that there was no ouster of the plaintiffs with regard to their share in the property. We think that, in the absence of any open denial of title, the possession of one tenant-in-common would be on behalf of all according to the ruling in Jogendra Nath Rai v. Baladeo Das I.L.R (1907) Cal, 961. and unless there is clear evidence of exclusion or open denial of title, the plaintiffs' claim cannot be held to be barred by limitation.
4. On these grounds, we think the view of the lower appellate Court is correct. We would, therefore, dismiss the appeal with costs. The cross-objections are dismissed with costs.
5. The suit was brought by the three daughters of a deceased Mahomedan for their proper shares in his property, and against their deceased brother's widow and her children and daughter-in-law, Joomabhai, the original owner of the property sought to be divided, died in 1907, and the original Court held that since his death the plaintifis1 brother Chhotubhai, and after aim his widow Jivi, had held the property adversely to the plaintiffs to their knowledge, and hence that the claim was barred by limitation under Article 144 of the Indian Limitation Act, the suit having been instituted in 1924. In the first appeal the learned District Judge took a different view. He thought that though the plaintiffs had not claimed or assumed possession of any part of the property, they had refrained from asserting their separate rights partly because the family was a united one in the sense of an absence of quarrels amongst its members, and perhaps also because there was a common impression that in some way their case was parallel to that of a joint Hindu family. But, in his opinion, there had not, in any case, been an exclusion of the plaintiffs to their knowtedge from participating in the tenancy-in-common which arose on Joomabhai's death among his heirs, and that consequently there had been no adverse possession running against them for the statutory period necessary to defeat their claims. The original Court's decree was reversed and the suit was remanded for disposal on the merits, This is the order which is challenged in appeal.
6. It has been argued that the finding that the plaintiffs refrained from an earlier assertion of their claims owing to ignorance of their rights is in the appellants' favour. But this is really a travesty of the learned District Judge's argument. To become adverse, the possession of a cosharer or of a tenant-in-common has to be asserted as being exclusive to the exclude co share's knowledge, and this was not the case here. In fact, what happened was that until the quarrel arose in 1923 or 1924, the daughters of the family lived in amity with their brother, and, after his death, with his widow; and though actually living at their respective husband's residences, they frequently visited their brother's home and received gifts from him and from his widow, I agree with the learned District Judge that there was no exclusion of the plaintiffs to their knowledge, and if Article 144 of the Indian Limitation Act applies to the facts, the suit is not barred.
7. But the order in question has been assailed on another ground. This is that it is not Article 144 but Article 123 of the Indian Limitation Act which applies to the facts and the ruling in the privy Council case of Maung Tun Tha v. Ma Thit I.L.R (1916) Cal, 379: 19 Bom. L. R. 294, . has been I.L.R (1916) Cal 379: 19 Bom. L. R. 291. relied on in support of the argument This ruling of their Lord ships of the Privy Council was given in an appeal from Burma, and deals with the succession of a Burmese sod to a portion of his father's estate. The rule appears to be different to that of Mahomedan law, but there is a passage in their Lordships' judg- which states that Article 123 applies generally to a ease of contested succession to property. It has been argued that the suit not having been brought within twelve years of Joomabhai'a death and being one to recover a distributive share of his estate, is time-barred. I his argument has been reinforced by reference to the expressions used in the judgment of Macleod J. in Shirin-bai's case I.L.R(1918) Bom. 845,: 19 Bom. L.R. 384. which was in connection with a Parsi inheritance. The expression 'distributive share' is foreign to Mahomedan law, and is found only, as far as I know, in the Indian Succession Act, a statute with which this has no connection. We have also been referred to the case of VenkatadH Appa Rao v. Parthasarathi Appa Rao (1925) L.R. 52 I.A 214: 27 Bom. L.R. 823. which, however, concerns a legacy, and to the case of Nurdin Najbudin v. Bu Umrao I.L.R (1920) Bom. 519: 22 Bom. L. R. 1429. in which the point now in question is discussed, Mr. Thakor has sought to distinguish this last case, on the ground that there was there an actual tenancy-in-common, while here the plaintiffs have never had possession. But I believe that this distinction is not material. Mecleod J,, on whose expression in Shirinbai's case Mr. Thakor relies, was a party to this later decision, and Fawcett J, in his judgment has discussed the ratio decidendi of the case of Maung Tun Tha v. Ma Thit, and has explained and distinguished it, holding that Article 123 does not apply to the case of the estate of a deceased Mahomedan, This precedent is in accordance with the current of decisions of this Court and is that of a Division Bench which binds us.
8. I think the learned District Judge's order is correct and I agree that it should be confirmed and that the appeal against it should be dismissed with costs.