(1) These three second appeals have been referred to a Division Bench by Mr. Justice Shah, as in his opinion they involved a question as to the interpretation of Articles 120 and 144 of the Indian Limitation Act. Appeal No. 1490 of 1955 arises out of suit No. 302 of 1949 filed by Mahadeo Arjun Kokate, to whom I will hereafter refer as the plaintiff. There are six defendants in this suit, who belong to the Gokhale family. Deferndant No. 1 Vishwanath had three brothers Kashinath, Ganesh and Parsram. Defendants 2 and 3 are the sons of Kashinath. Defendant No. 4 Ganesh died during the pendency of the suit and his son Anant has been brought on record in his place. Defendant No. 6 is the widow of Parsram, while defendant No. 5 is Parsram's grandson. The defendants' family and their bhaubhands jointly owned several properties, in which they had onefourth share. The defendants' bhaubhands sold their 12 as. share to Limayes prior to 1913. In 1903 defendant No. 1 and his brothers seperated from each other. In 1913 Limayes filed a suit for partition of their 12 annas share and obtained a decree. On 8-11-1913 Kashinath, who had a 1/4th share in the properties belonging to the Gokhale family, sold his share to Bapuji Vasudeo Lele. In 1937 Limayes filed suit No. 304 of 1937 against the defendants for partition and separate possession of some properties purchased by him. His claim was denied by the defendants, who contended that the transaction in his favour was a sham and bogus one. No relief was granted to Lele in this suit. Sometime thereafter, Lele leased four pieces of the suit lands, Hissa Nos. 1, 3, 7, and 10 of Survey No. 32 to one Moru Dhondu Jathar and one other survey No. 105/1 to Antu Dhondu Gurav. On 8-1-1948 Lele sold the properties purchased by him from Kashinath to the plaintiff Kokate. The plaintiff then obtained possession of the properties. Defendant No. 1 then filed suit No. 180 of 1948 under S. 9 of the Specific Relief Act and obtained possession of the properties in execution of the decree passed in that suit. Thereafter the plaintiff filed suit No. 302 of 1949, out of which appeal No. 1490 arises, for partition and separate possession of his 1/4th share in the suit lands. The defendants resisted the suit on various grounds. Their principal contentions were that Lele had not acquired any title to or interest in the suit lands, as the transaction between him and Kashinath was a hollow and sham one, not intended to be acted upon , and that the suit was barred by limitation. The trial Court held that the plaintiff had tailed to prove his or his predecessor Lele's title to the suit properties, and also their possession within twelve years before the suit. The suit was, therefore, dismissed. The plaintiff appealed to the District Court. The learned District Judge held that the defendants were not entitled to challenge the plaintiffs title to the properties and that the plaintiff was entitled to a partition thereof. It was urged before him that the suit was barred by limitation under Article 120 of the Limitation Act. The learned District Judge, however, held that Article 144 and not art. 120 applied to the suit. He also held that, as the plaintiff had filed the suit within twelve years from the date on which defendants 2 and 3 had filed their written statement in suit No.304 of 1937 denying the plaintiff's title, the suit was in time. He, therefore, allowed the appeal filed by the plaintiff and passed a decree in his favour. against this decree appeal No. 1490 of 1955 has been filed by the defendants 1 to 3.
(2) After Defendant No. 1 obtained possession of the properties in execution of the decree passed in his favour in suit No. 180 of 1948, Jathar and Gurav made application to the Mamlatdar under S. 29 of the Bombay Tenancy and agricultural Lands Act for obtaining possession of the lands. In these applications they contended that they were the tenants of the lands. Their contentions were accepted by the Mamlatdar and in appeal by the Collector. The Bombay Revenue Tribunal dismissed the revision application filed by defendant No. 1. Thereafter defendant No. 1 filed suit No.146 of 1950 against Jathar, the plaintiff Mahadev Kokate and his brother for obtaining possession of the four lands, of which Jathar had taken possession. He filed another suit No. 147 of 1950 against Gurav, Mahadev Kokate and Krishna Kokate. He succeeded in both these suits and obtained decrees for possession of the five lands leased to Jathar and Gurav. The appeals filed by Jathar, Gurav, and Kokate to the District Court were dismissed. Against the orders passed by the District Court, Jathar and Mahadev Kokate have filed second appeal No. 1099 of 1955, while Gurav and Kokate have filed second appeal No. 1100 of 1955.
(3) In appeal No. 1499 of 1955, the only question, which has been urged by Mr. Kotwal on behalf of the appellants, is that the suit was barred by limitation. He has contended that the article of limitation applicable to the suit is Article 120 and not Art. 144. In support of his argument he has relied on Shevantibai v. Janardan Warick 41 Bom LR 631 : AIR 1939 Bom 322. In that case it was held that under Hindu law a purchaser from a member of a joint family does not acquire a right to be considered himself a member of the joint family in place of the vendor, or a right to have joint possession of the family property in place of the vendor or even a right to possession of any specific part of the property, that being a right which the vendor himself did not possess and that the only right which the purchaser has in such a case is right to sue for partition and ask for being allotted to himself the share which would have gone to his vendor. It was also observed that as the purchaser from a coparcener is not entitled to joint possession of the family property, he cannot rely on the ordinary rule that the possession of one co-tenant is the possession of all. Article 144 applies to a suit for possession of immoveable property and the period of limitation runs from the date when the possession of the defendant becomes adverse to the plaintiff. If, however, the plaintiff is not entitled to possession, the possession of the other person cannot become adverse to him, because as observed by Beaumont, C. J. adverse possession denotes exclusion of somebody entitled to possession. A purchaser of an undivided interest of a coparcener in the joint family property cannot, as of right, claim joint possession of the property or separate possession of the portion representing the undivided share of his vendor in the property. By his purchase he acquires a right to partition and not a right to possession prior to partition. Consequently, it was held in 41 Bom LR 631: AIR 1939 Bom 322 that, Art. 144 does not apply to a suit for partition and possession brought by a purchaser of an undivided interest of a coparcener in the joint family properly and he cntinues to be a member of the joint family with rights of survivorship between himself & other coparccners in respect of all the family property. Sec para 399 in Mayne's Hindu Law and Usage, 11th Edition. The position is, however, different when the coparccnary has come to an end. The above decision will not therefore apply where the members of the joint family have seperated and where the joint family has ceased to exist. After separation, the separated members hold the properties, not actually divided, not as joint tenants, but as tenants in common, that is, as co-owners. The rule about the exclusion of the purchaser of an undivided portion of the joint family property from possession of the property will not apply in such cases, for there is no longer any joint family or joint family property. If, therefore, a person purchases the share of a separated member in property, which was not actually partitioned but which continues to be held jointly by the separated members of the family, his rights will be governed by the ordinary law. By his purchase, he acquires all the rights of his vendor, including his rights as a co-owner to joint possession of the property jointly held and also his right to obtain by partition separate possession of his share in that property. A suit for possession by a co-owner, who is not in possession, against the other co-owners who are actually in possession is governed by Art. 144 of the Limitation Act. There being a specific article applicable to such a suit, the residuary article 120 will not apply. This article 144 will, therefore, apply to a suit for possession by the purchaser of the undivided interest of a separated member of the family in property, which was kept joint at the time of the partition or when members of the joint family seperated from each other.
(4) In this case defendant No. 1 has admitted in his evidence that he and his brothers had separated in 1903. Kashinath sold his share to Lele many years thereafter in 1913. article 144 and not Art. 120 will, therefore, apply to the present suit.
(5) Under Art. 144 the period of limitation begins to run when the possession of the defendant becomes adverse to that of the plaintiff. Mr. Kotwal has urged that the rule that possession of one co-owner must be deemed to be the possession of all the co-owners does not apply in the case of a purchaser from a co-owner and that the purchaser of the share of a co-owner must file a suit for possession within twelve years from the date of his purchase and not within twelve years from the date on which his title is actually denied. He has relied on the decision of a single Judge of the Lahore High Court in Udi v. Maru Mal AIR 1924 Lah 682. It was held in that case that a transferee cannot by the mere fact of transfer become a co-owner, if his rights as such are denied by the other co-sharers and a suit by him, thereforefor possession against his transferor's co-sharers must be brought within twelve years from the date of transfer. The judgment in that case does not give all the facts, for, it is not clear when the right of the purchaser had been denied. In Subah Lal v. Fateh Muhammad : AIR1932All393 , it has been observed:
'As regards co-owners the law is that there can be no adverse possession by one co-owner unless there has been a denial of title and an ouster to the knowledge of the others; and the same principle applies to the case of a transferee from a co-owner. There can be no difference in principle whether a person is the original co-owner or has become a co-owner by virtue of transfer'.
With respect, we agree with these observations. By his purchase of Kashinath's undivided interest, Lele became a co-owner along with Kashinath's brothers. The possession of the properties by the defendants thereafter was the possession on behalf of all the co-owners, including Lele and subsequently his transferee, the plaintiff. Their possession became adverse when Lele's title was denied by he defendants in the written statement filed by them in suit No. 304 of 1937.
(6) Mr. Kotwal has also contended that as neither the plaintiff nor Leke had received any part of the income realised from the lands since Lele purchased Kashinath's share, there was an ouster and that consequently the defendants have acquired title to the lands by adverse possession. This argument cannot be accepted. As held in Nargisbai v. Jehangir 45 Bom LR 104 in the case of joint property, mere exclusive possession and enjoyment by one co-owner is not enough to constitute adverse possession against the other co-owners, unless there is a denial of title justifying a presumption of ouster of the latter. In P. Lakshmi Reddy v. L. Lakshmi Reddy : 1SCR195 it has been observed:
'But it is well settled that in order to establish adverse possession of none co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession, who claims his possession to be adverse, should be made out. The possession of one co-heir is considered in law as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open asscertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster.' Mere possession and enjoyment of the profits of the suit lands for a long period by the defendants will not therefore constitute ouster. There was in this case no denial of the title of Lele until defendants 2 and 3 diled their written statement in suit No. 304 of 1937. The defendants' adverse possession, therefore, commenced on the data on which this written statement was filed. The suit has been filed within 12 years from this date and is, therefore, in time.
(7) Appeal No. 1490 of 1955, therefore, fails and is dismissed with costs.
(8) In the other two appeals, the only point, which has been urged by Mr. Albat on behalf of the appellants, is that a direction may be given that while making a partition of the suit lands, the five pieces of lands Hissa Nos. 1, 3, 7 and 10 of survey No. 132 and Survey No. 105/1, which had been leased to Jathar and Gurav, may, as far as possible, be allotted to the share of Kokate. Mr. Kotwal, who appears peals, has no objection to such a direction being given. Accordingly, in these appeals we direct that while effecting a partition of the lands in suit No. 302 of 1949, these five lands should, if possible, be allotted to the share of the plaintiff Mahadev Arjun Kokate in that suit. Subject to this direction, these two appeals are dismissed with costs.
(9) Appeals dismissed.