1. The question in this appeal is whether, as held by the lower Court, the plaintiff-respondent Lakahmibai, widow of Daji, is entitled to recover possession, with mesne profits of the lands in suit.
2. It is common ground that it has been the custom of the family for these lands to go with the Patilki watan which is again to go to the eldest member of the family (i.e., vadil). The common ancestor Babaji had three sons, Daji, husband of plaintiff-respondent No. 1, Vithu, father of defendant No. 1; and Ramohandra, grand-father of defendant No. 3, appellant. Daji was the officiating Patil watandar, and, admittedly, had posession, and was in enjoyment of the lands until February 28, 1886. From his death, the plaintiff-respondent No. 1, with the consaat of the representatives of the other two branches, was, as the widow of the last male holder, appointed as the representative watandar Patil by Government under Section 2 of Bombay Act V of 1886. The plaintiff's case is that she took over possession of the lands in suit but, having to discharge the duties of a Patil, she appointed as deputies, first, Ramchandra, and, then, the father of defendant No. 3, to manage the lands for her, and that in 1916 the defendants sought to assert their own rights.
3. The appellant resisted the claim on two grounds : firstly, the plaintiff-respondent No. 1 being a woman could not take advantage of the custom of the family which applied solely to males; and, secondly, the appellant had been in adverse possession of the lands in suit for over the statutory period. Reliance was placed on the case of Raja Rup Singh v. Rani Baisni I.L.R(1884) . 7 All. 1 and it was argued that it was for the plaintiff-respondent to prove that she came within the custom although a woman, and not for the defendant No. 3, appellant, to prove that she was outside it.
4. That, however, was the case of an impartible Raj. Here the common ground, confirmed by the partition deed, Exhibit 42, dated July 27, 1916, between the defendants, is that the lands in dispute were, by a custom of the family, treated as Patilki watan and in the exclusive enjoyment of the eldest member of the family who was the Patil. Accordingly, the ordinary rules of a Hindu joint family hardly apply. In the family itself the question of a woman has not apparently arisen heretofore, and the plaintiff-respondent is admittedly appointed to succeed as Patil and watandar with the consent of the representatives of the other two branches without any objection being raised to her appointment on the ground of her sex; and, similarly, as the widow of the last male holder she is expressly accepted by Government and placed on the same footing as males by Section 2 of Bombay Act V of 1886, apart from the actual performance of the duties of the office of Patil, to disoharge which, under Section 51 of the Bombay Hereditary Offices Act III of 1874, she must appoint a deputy. In the absence of any evidence to the contrary, there appears no reason why, being considered fit and having to discharge the duties of a representative Watandar Patil, she should not be allowed the enjoyment, as long as she is Patil, of the lands according to the custom of the family.
5. As regards the second objection of adverse possession, it is clear on the evidence that the lands were managed by her deputies on her behalf and rented out to tenants. The possession of the appellant, and of the defendants, is not proved to have been adverse to the plaintiff-respondent and there is no bar of limitation.
6. The appeal fails and is dismissed with costs against the appellant.