Amberson Marten, Kt., C.J.
1. This is an appeal by defendants Nos. 1 to 4 against the judgment of the learned Joint First Class Subordinate Judge at Dhulia, finding that the plaintiff as the adopted son of one Ramchandra was entitled inter alia to one half share in the suit lands, and directing a partition on that basis, and other consequential relief.
2. To understand the position, one must look at the pedigree given in the learned Judge's judgment, but for the purpose of my judgment, it must be supplemented by inserting the dates of the deaths of certain material persons. It is common ground that with regard to the suit lands, they belonged to one Sambhubhat. His widow was Ratanbai who died in 1859. This property, unlike certain other property, was not joint ancestral property, but passed on Ratanbai's death by way of collateral descent to the descendants of Ambaram the brother of Sambhubhat. It may be taken also as admitted or proved that Ambaram's two sons, namely, Dullabhram and Jaduram, both died in the life-time of Ratanbai, as also did Ambaram himself.
3. Then following down the two branches of Dullabbram and Jaduram, we find that Dullabhram had three sons. Narottam, the first son, died in 1878 and he has a son, Mulji, who is defendant No. 1. Vijayshankar, the next son, died in 1895, leaving three ohildren, defendants Nos. 2 to 4. Manishankar, the third son, died in 1902, leaving two sons, Tulashankar who died on December 81, 1918, leaving two daughters defendants Nos. 6 and 7, and Somnath who died in 1918 having by his will purported to leave his share to his sister Bai Dhiraj, defendant No. 5.
4. Next coming to Jaduram's branch, we find that he had a son Ramchandra who died in 1884 leaving a widow Bai Dahi. She is living but is not a party to the suit. On November 5, 1915, she purported to adopt Hiralal the plaintiff' as the adopted eon to her deceased husband Ramchandra.
5. The questions that arose in the suit included a dispute as to whether this adoption by Bai Dahi was proved and inter alia whether, if it took place, the proper ceremonies were performed, the parties being Brahmins. Apart from that, other questions that arose were, first, whether the family was divided (a) at Ratanbai's death in 1859, and (6) at the date of this adoption In 1915; secondly, whether the alleged authority to adopt is proved, and if so, whether the adoption was proved to have been carried out with full ceremonies and is valid; and, thirdly, if the adoption was proved, whether the plaintiff's share was a half or was it a quarter, and incidentally did the lower Court erroneously decide the question of limitation and adverse possession in favour of the plaintiff. And there was a subsidiary question about mesne profits.
6. There appear to have been three classes of property, namely, certain immovable property at Nandod; secondly, certain customary rights to receive emoluments as Brahmin priests; and, thirdly, certain properties in Khandesh. It is conceded that as far as the first two properties are concerned, namely, the immovable property at Nandod and the priest's emoluments, they have been divided. Further, the parties themselves have all lived separate for a large number of years. On the other hand, the property in Khandesh has been left undivided, but the income from it as and when received was for many years divided between various persons including a division in equal moieties between Kamchandra's branch on the one hand and Narottam's branch on the other.
7. Accordingly, one main point that arises is this : Having regard to the fact that this particular property in Khandesh has in fact been left undivided, ought the parties still to be regarded as a joint Hindu family with respect to it There is a case decided by Sir Charles Sargent and Mr. Justice Bayley, namely, Gavrieshankar Parabhuram v. Atmaram Rajaram I.L.R(1893) . 18 Bom. 611 which indicates that in the absence of any special agreement a division or partition of certain property between the members of a joint Hindu family does not affect the undivided property, and that with regard to that undivided property they still stand to each other in the usual relation of members of a joint Hindu family. Hindu. But, as has been pointed out in Dagadu v. Sakubai : AIR1924Bom31 by Sir Norman Macleod and Mr. Justice Crump, it would seem that the effect of that decision has been seriously challenged by Sub-sequent decisions of the Privy Council such as Ramalinga v. Narayana : (1922)24BOMLR1209 and Girja Bai v. Sadashiv Dhundiraj . Bom. L.R. 621 Indeed Mr. Justice Crump went so far as to say (p. 809):-
Once it is held that there has been partition, I should myself he inclined to bold that the presumption must be that as regards that portion of the estate which remained undivided, the members of the family would hold as tenants-in-common unless and until a special agreement to hold as joint tenants is proved.
8. According to the principles laid down by their Lordships of the Privy Council themselves, the test is whether there has been an unambiguous and definite intimation of intention on the part of one member of the family to separate himself and to enjoy his share in severalty. If so, that has the effect of creating a division in interest, That expression of intention may be, for instance, by the institution of a suit, or it may be by some express intimation, or it may be inferred from a consistent long course of conduct. Here it is clear that not only were the parties living separately, but the whole of the ancestral property had been divided, and the question before us is what is the proper inference to be drawn as regards this particular property which came by way of collateral succession. We think that the learned Judge arrived at the correct conclusion in holding that the parties here must be taken to have separated as regards the interest in the suit property although or actual partition by metes and bounds was arrived at, and that this conclusion is assisted by the fact that for a large number of years the income of the property was divided in shares that may not be correct shares in law but which at any rate indicate that they were separate shares in interest.
9. Turning to the next point as to the validity of the adoption, the position is that the plaintiff set up an express authority to adopt. This is rather courageous seeing that Bai Dahi was adopting in 1915 to her husband who died in 1884. On the other hand, the defendants were equally courageous in setting Up a 8tory of an express order of prohibition. Whether in fact, there was an express authority does not matter having regard to the law by which the parties are governed. So it is unnecessary to say whether there was any special authority, however sceptical one may be as to that story after this length of time. Then as regards the alleged express prohibition, the learned Judge points out clearly that it is not established, and we see no reason to interfere with his decision on that point. We think then that the fact of the adoption must be held proved, and as regards its alleged invalidity because certain ceremonies appropriate to Brahmins were not performed, the evidence in this respect is unsatisfactory. Therefore, we agree with the learned Judge that the validity of the adoption is also proved.
10. That brings one to the real crux of the case, and that is what is the proper share of the plaintiff. I have already pointed out that the suit property we have to deal with is not ancestral property but came by collateral succession. The result was that in law the shares were different from those taken in the ancestral property. As far as the ancestral property was concerned, the division would be first in equal shares per stirpes between Jaduram's branch and Dullabhram's branch. In other words, Narottam and his two brothers would take one moiety and Jaduratn or his son Kamchandra would take the other moiety. But as regards the suit property, the division in law would be per capita, namely, between the three sons of Dullabhram and one son of Jaduram, each taking a quarter. In fact, however, the evidence clearly shows that for a long series of years all parties have divided the income on the same basis as if the suit property was ancestral property. That particular division has benefited the plaintiff's branch because they have received a half instead of a quarter. In other words, they have been receiving year after year double of their rightful amount. Accordingly, it is now contended that that has crystallized by adverse possession into a right to a moiety of the corpus, and that they have successfully ousted their co-tenant-in-common by adverse possession under the Indian Limitation Act, or alternatively that we must presume a legal origin for these admitted payments and accordingly presume a conveyance or an agreement.
11. In the first place, one may observe that no such case of ouster or adverse possession is set up in the plaint. An issue, however, appears to have been raised upon it, and eventually the learned Judge decided the point in favour of the plaintiff, but he states that no authorities directly bearing on this point were cited at the time of the arguments. In this respect we have an ) advantage over the learned Judge because a considerable number of authorities has been cited to us, and moreover there is a very r. recent decision of this Court on the very point, namely, Keshav v. Govind : AIR1928Bom287 .
12. But first let me amplify the statement of facts which have been clearly set out in the careful judgment of the learned Judge. Undoubtedly, what took place is that the rents of this undivided property were collected by a Mukhtyar, who was appointed-for at any rate certain years-by a power of attorney. Then these rents were paid over to Narottam and Eamchandra, and after their death to their respective representatives in interest. At some later date, which seems to be about 1904 or thereabouts, the money was divided by the Mukhtyar into equal shares and one moiety sent to each branch. It would also appear that at any rate in the beginning of the present century, some of the parties took their shares on the basis that the property was divisible in moieties amongst each branch. There is one document which the learned Judge refers to and which requires particular attention. I refer to Exhibit 196 which is a document of April 24, 1914, given by defendant No. 1 Mulji in favour of Bai Dahi the widow of Ramchandra. That document recites:-
The suit lands 'stand in your and our names. Those lands are common to us. Also the dilapidated Gabhan of two rooms ancestral and non-partitioned in Sahada is also common and yon have a half to half portion in it. Since last two or three years the kararnammas of the common lands stated above and the rent-notes of the two rooms are made in our names. You have a half to half right in it....For the next year, that is in the year 1972, we shall get the kararnamas for collecting money made in the names of ns both in common and you may keep with you the rent note and the collecting kararnamas of the year 1971 and you may give us their copies. The kararnamas of the year after that is of 1973 will be kept by us and you will be given copies.' The document thus provided that the rent-notes given by the tenants-in-common should be kept by them in alternate years. The recitals make it clear that the parties considered that they were entitled to the corpus and the income in equal moieties. Mulji for that purpose would be representing his particular branch, namely, Dullabhram's branch.
13. Further, in 1919 a suit No. 665 was brought in the Court of the Second Class Subordinate Judge at Nandurbar by Bai Dhiraj, the present defendant No. 5, claiming a one-sixth share in the suit property and in the income thereof and her share of the rents. In that suit all the material present parties were parties, although the Judge appears to have held that the present plaint- tiff was not a necessary party. Be that as it may, the claim of defendant No. 5 was based on the view that the property went in moieties and that she was accordingly entitled to a third of a half making one-sixth. In fact she was awarded one-twelfth, but that depended on certain matters of controversy between her and her deceased brothers or the representatives of one of them. An appeal brought from that decision was dismissed by the District Judge.
14. I may say at once that the plea of res judicata could not, I think, be established, because it is common ground that the Second Class Subordinate Judge had no jurisdiction to award partition of the entirety of this property. So at most this must be regarded as evidence of what the parties themselves considered at the time they were entitled to. In the present suit, the same defendant No. 5 has pleaded that her claim in the former suit to one-sixth share was baaed on an error of law and that her proper share is not one-twelfth, but that on a proper division of the property into quarters, she is entitled to a moiety of that quarter which goes to the representatives of Manishankar's branch.
15. I do not propose to go into any further details on this branch of the case. One may take it, as I have already indicated, that it is established that for a long series of years the income payable to the tenants-in-common was in fact enjoyed by them in shares contrary to those to which they were entitled originally by law, and that the parties have to some degree acted on that view, not I think by agreement with each other but by way of admission in certain documents or proceedings.
16. What then is the proper inference that we should draw from those circumstances I have already mentioned the recent case of Keshav v. Govind : AIR1928Bom287 . There this curious circumstance had arisen. There was an adoption, and the person adopted had a son born before the adoption and another one born after the adoption. Now, under the decisions of our Court, a child born before the adoption would remain in his natural family, and a child born after the adoption would go into the new family. But in fact, in that particular case, both the child born before the adoption and the child born after the adoption were treated as being sons in the new family. Accordingly, for a long aeries of years the sons lived together and enjoyed the property in the manner in which they would have enjoyed it if they had been legal sons in the new family. The question that arose there was whether the possession of the son born before the adoption was adverse to the other son by reason of that enjoyment The Court there held that it was not adverse, that the parties were labouring under a misapprehension of law, and that the possession of the elder son was not forcible but was by consent and acquiescence, and therefore, no title was acquired by the elder son as against the son born after the adoption. I may add that Mr. Justice Baker remarked in that case that the point was one which had never apparently arisen before and was not likely to arise again, But my experience is that unsual cases often run in pairs. This at any rata appears to be an instance.
17. The difference between the two cases is that here the parties have not been living together, and that it is not a question of one of them having no right whatever. Both of them were entitled to some aliquot share in the property, and the only difficulty is that they have not each received their rightful shares. The one has bad too much, the other has had too little. However, I should feel much difficulty in distinguishing the case of Keshav v. Govind from the present case even if I felt myself at liberty to do so. And with due respect to counsel's arguments which have been most useful to us, and to the authorities that have been cited, I think one may go a little further in this matter on general principles, When once you get tenants-in-common the law seems to be reasonably clear that you are not to find ouster unless there has been a clear and definite exclusion of one tenant-in-common by the other under a claim of right and to the knowledge of his co-tenant. On the other hand, there may, over a long series of years, be such a course of conduct that the proper inference to draw from all the facts is that there has been such an ouster. This is put, I think, very clearly by Sir Lawrence Jenkins and Mr. Justice Batty in Gangadhar v. Parashram 7 Bom. L.R. 252 where the head note is :-
To constitute an adverse possession as between tenants in-common there mast be an exclusion or an ouster.
Sole possession by one tenant-in-common continuously for a long period without any claim or demand by any person claiming under the other tenant-in-common is evidence from which an actual ouster of the other tenants-in-common may be presumed.
18. An old English case, Fishar and Taylor v. Prosser (1774) 1 Cowp. 217 was cited where Mr. Justice Ashhurst said (p. 219):-
Here is a possession of near 40 years, without any claim by the lessors of the plaintiff to a share of the rents and profits, and without any acknowledgment of his right, by the other tenant in common.
After so long an acquiescenee I think the jury were well warranted to presume any thing in support of the defendant's title, and they might presume, either an actual ouster or a conveyance.
That of course is not the case here. We have not got one co- tenant enjoying the entirety of the rent, but merely an excessive share. On the other hand, in Shivalingappa v. Satyava (1920) 23 Bom L.R. 967 a decision of Sir Norman Macleod and Mr. Justice Shah, it is stated (p. 970) :-
It does not follow that because he [a tenant-in-common] is out of possession time immediately begins to run against him; in other words, it does not follow that because one of two tenants-in-common is in possession that he is holding adversely to the other tenant-in-common. There must be evidence of ouster, that is to say, the evidence of a denial by the tenant in possession of the right of the tenant who is out of possession to share in the profits of the property.
19. There is another decision in the same volume, Chandbhai v. Haeanbhai : (1921)23BOMLR1033 , to the same effect.
20. Then, in Robert Watson & Co. v. Ram Chand Dutt it is pointed out that where you have two or more tenants-in-common in India, there is nothing necessarily inconsistent with the rights of the parties to the corpus that one co-owner of property may be getting a larger share of the property than the others, at any rate, if it arises from his own efforts or his own particular risks.
So, too, in Gobinda Chandra Bhattacharjee v. Upendra Chandra Bhattacharjee I.L.R(1919) .Cal. 274 (a decision of Chatterjea and Duval JJ.), yet another judgment of Sir Lawrence Jenkins is cited where he said (p. 278) :-
The law on the subject I take to be well settled. In order to establish adverse possession by one tenant-in-common against his co-tenants there must be exclusion or ouster and the possession subsequent to that exclusion or ouster must be for the statutory period...,What is sufficient evidence of exclusion...must depend upon the circumstances of each case...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 circum-stances of a particular case amount to an adverse possession. Regard must be had to all the circumstances, and a most important element is the length of time.' (Ayenenussa Bibi v. Skeikh Isuf (1912) 16 C.W.N. 849.
21. In the present case one has to bear in mind the admission in the agreement, Exhibit 196, I have alluded to and such other admissions as may appear from the accounts and otherwise. Having done that and after giving full weight to what has been placed before us on behalf of the respective parties I have arrived at the conclusion that the plaintiff baa not satisfied the onus of proof that lies on him to establish that there was either an ouster of his co-tenants, or on the other hand, some conveyance or agreement which has been lost or destroyed. Therefore, on this part of the case I am unable to agree with the decision of the learned Judge.
22. I would accordingly hold that the decree should be varied by declaring that the plaintiff is entitled to a quarter and not to a half share of the suit property, and that the consequential relief must be amended accordingly.
23. That leads us to the subsidiary point about the mesne profits. Now, here it is urged that inasmuch as upon this finding the plaintiff's branch has been receiving an excessive income for a large number of years, it would be only equitable that mesne profits should not be awarded prior to the date of the suit. But, in fact, it appears that from about 1914 or thereabouts, the appellants' branch has been in exclusive possession of these rents. Moreover it is clear that their branch is time-barred from claiming any repayment of rents prior to that date. Consequently, although they had no right to receive these profits in the way they did, they are now in effect claiming a set-off in respect of a claim which is barred by limitation. That seems to me to be a contention which we cannot allow. Accordingly, it seems to me that the learned Judge's award with regard to mesne profits prior to the suit was correct.
24. Then there are cross-objections urged by Mr. Coyajee's clients, namely, defendants Nos. 5, 6 and 7. He objects in the first place to the passage in the learned Judge's judgment that his clients should be left to recover profits prior to the date of the suit by separate suits. It is urged that the aim of this Court is to have all disputes settled in one litigation and not to have the parties' rights determined piecemeal at different times by different suits and perhaps by different Courts. We think that this contention is sound and that if these defendants are entitled to the profits prior to the suit, they should not be put to separate suits to recover them. Then as to the question whether they should get any profits prior to the suit, we think that they should be given those profits, but it would appear that the period for which they can properly claim must be limited. As to that minor detail, I would propose to hear counsel before deciding.
25. We will also hear the parties on the question of costs after my brother Murphy has given his judgment. I should have explained that the position taken by Mr. Coyajee'a clients is that they have all along admitted the adoption of the plaintiff but that they support the appellants with regard to the amount of the share which the plaintiff is properly entitled to.
26. The parties to this suit and appeal are members of a Brahmin family living at Nandod in the Rajpipla State, and owning some land in the Shahada Taluka of the West Khandesh District and the suit relates only to the family property in Khandesh, the ancestral property elsewhere, including the movable and immovable property at Nandod in the Rajpipla State, having admittedly long since been partitioned. The Khandesh property originally belonged to one Sambhubhat, who died many years ago, leaving a widow Ratanbai, who is said to have died in 1859. When the succession opened, the shares would depend on the number of reversioners who were living at the time. In this case, if Sambhubhat's two nephews, Dullabhram and Jaduram, were living, each would take a half, while if they had predeceased Ratanbai, their sons, of whom Dullabhram had three and Jaduram one, would take a quarter share in each case. On the evidence given in the course of this suit, it appears that, as a matter of fact, Dullabhram and Jaduram had died before Ratanbai, and that there were actually four reversioners, each taking a quarter share. But what really happened was, probably, as now appears, owing to a mistake in law, and on the analogy of the inheritance of ancestral property, that the Khandesh property was divided into two shares, Dullabhram's three sons taking a half, and Ramchaudra, the son of Jaduram, taking the other half. Ramchandra died in 1884, and was succeeded by his widow Bai Dahi, who was in enjoyment of the property until November 5, 1915, when she adopted the plaintiff, who is her brother's son. On Bai Dahi's adopting, the rest of the family resented her action and refused any longer to allow her to have any of the income of the property in question. The plaintiff' filed this suit in 1921, praying for a declaration that he was the owner of a half share in the whole of the Khandesh property, and for partition and possession of his share, and mesne profits for the six years prior to the suit, at the rate of Ra. 300 a year. The defendants, who are the descendants of the three brothers, Narottam, Vijayshankar and Manishankar, all of whom have since died, deny the plaintiff's claim, The plaintiff's case was that Ramcbandra had given authority to his widow Bai Dahi to adopt, while the defendants alleged that he had in fact prohibited any adoption by her, The learned Subordinate Judge has disbelived all the evidence as to prohibition, and since the family is a Brahmin one residing in Western India, the presumption is that it is governed by the Bombay school of law, Murphy J., in which case the widow needs no authority to make a valid adoption. It was also pleaded that the proper adoption ceremonies were not carried out, but the evidence is, I think, sufficient to show that the homa ceremony was duly performed; and the witnesses who speak to the contrary are probably not telling the truth. I agree with the learned Subordinate Judge in thinking that the adoption has been proved and that it was valid.
27. On his adoption, the plaintiff would take Ramchandra's share in the ancestral property, and also in the property in Khandesh. The facts as to this last are, that though it was never actually partitioned, its income was enjoyed through a Mukhtyar who managed it on behalf of Bai Dahi and of the eldest son of the other branch, namely, one Narottam, the income being remitted by means of bundis to the owners of the property. As already stated, it has been found by the learned Subordinate Judge that on the opening of the inheritance, on Bai Ratanbai's death, the reversioners then alive were four in number, and were each entitled to a quarter share. The facts, however, are that since that date the income has been taken half and half, Ramchandra and after him his widow, getting one half and the other three reversioners, or their representatives, each getting a third in the remaining half.
28. One of the main questions in the appeal is whether the plaintiff is entitled to a half or to a quarter share in the whole property. The learned Subordinate Judge has decided in favour of the plaintiff taking a half share, and his main reason is that Ramchandra was allowed a moiety in the property under a mistake of law, that Narottam, Vijayshankar and Manishankar all wrongly believed that their share in the suit property was only one half, and that the other half belonged to Ramchandra: and that Ramchandra also mistakenly believed that his share was one half. On these facts he has formulated the principle, that possession and enjoyment under such wrong belief has the same effect for the purpose of limitation, as possession and enjoyment by a wrong doer. But he has quoted no authority for this view. The general principle is, that where the land is in the enjoyment of joint owners, and on the facts of this case I think it must be assumed that this property being inherited from a collateral of the family, did not form part of the ancestral property and the resulting title of all these people was that of owners-in common: before adverse possession can be held to run against a co-owner, it must be shown that he was deliberately excluded to his knowledge from any share in the property. The authorities have been discussed by the learned Chief Justice in his judgment, and I need not repeat them in this one. I think it is quite clear, on the facts of this case, that defendants Nos. 1 to 4 and their predecessors in interest were not excluded to their knowledge, and that the mistake of law, under which Ramchandra and his widow were allowed a larger share in the property than they were entitled to, would not cause limitation to run against the defendants so as to give Bai Dahi and the plaintiff a good title to a half, instead of to the quarter share which the plaintiff is really entitled to. I agree, therefore, that the learned Subordinate Judge's judgment must be varied in this respect, I also agree in the further order proposed by the learned Chief Justice in his judgment.
Amberson Marten, Kt., C.J.
29. I had intended to refer to the case of Collector of Surat v. Daji Jogi (1871) 8 B.H.C.R.166 . That was a case where Government for a long series of years continued to make certain payments to Chirda Hahdars who were employed by the girasias. Notwithstanding that, the collection of giras hales by the claimants themselves and their retainers having ceased, the duty of the chirdadars ceased with it. There West J. in his judgment says (p. 170):-
But it cannot be said that by the mere payment any right, much less the right alleged by the plaintiffs, has been admitted, further than as to the payments actually made. It cannot be said of an individual payment without more that it involves an admission of any right beyond that to the payment itself. To make it evidence of a further right, it must be taken with other extrinsic circumstances constituting, by logical inference or by some rule of law, proof of the right asserted.
30. Then he ends up his judgment by saying (p. 174):-
The mere fact of payment to a man of that to which he is not entitled is never in itself an injury, so as to afford him a just ground of complaint when the payment afterwards ceases. It is only us raising in certain case a presumption of the existence of a right, of which other evidence, through the lapse of time, is not forthcoming, that the frequent repetition of acts such as payments, when unexplained, becomes in effect, though incidentally, the foundation of rights.
31. As regards the mesne profits claimed by defendants Nos. 5, 6 and 7, they will be allowed for three years before suit and will be payable by the appellants. As regards defendant No. 5, her share is to be varied notwithstanding the declaration in the decree in the previous suit No. 665. As already stated the decree in this present suit is to be varied as regards the amount of the plaintiff's share, and the consequential relief. The rest of the appeal is dismissed.
32. Having regard to the complications in this case and to what has taken place in the Court below and before us, we order as regards the costs of the appeal that each party should bear his own costs. As regards the costs in the Court below the order made there will stand. As regards the costs of the cross-objections, each party is to bear his own costs.