1. This is a plaintiff's appeal arising out of a suit for recovery of possession of property. The plaintiff's case was that he and his uncle, Shib Sahai, were members of a joint Hindu family even after the death of the plaintiff's grandfather, Kunwar Singh, and that the entire property in dispute in the case was either ancestral property which devolved upon them from Kunwar Singh or was such as had been acquired in the name of Shib Sahai out of the income of suit property. The plaintiff alleged that up to 1919, when Shib Sahai died, the family was joint and he is entitled to the estate by the right of survivorship. In the alternative the plaintiff claimed that even if he was not entitled to any share by right of survivorship, he had a half share in the entire estate which was joint and undivided. The plaintiff's name is recorded over half shares in some properties over which he is admittedly in possession. That property is accordingly not included in his claim. The plaintiff, in order to explain the delay in the institution of the suit, alleged that he had been insane off and on from the year 1916, and that certain revenue Court proceedings had been taken by taking advantage of his insanity. The claim was contested by the two widows of the sons of Shib Sahai, as well as by a daughter's son, Joti Prasad. They denied that the family was joint up to 1919 and pleaded that it was in fact separate and the plaintiff had no right of survivorship. They also pleaded that under a will executed by Kunwar Singh, dated 26th September 1878, certain properties had been bequeathed exclusively to Shib Sahai in which the plaintiff had no share. They also pleaded that there was a family arrangement effecting a partition of the family property which was accepted by the plaintiff, who is not entitled to challenge it after so many years. It was also pleaded that the properties acquired in the name of Shib Sahai were the self-acquired properties belonging exclusively to him in which the plaintiff had no interest.
2. The learned Subordinate Judge has held that the family was not joint and the plaintiff is not entitled to a right of survivorship. He has, however, held that the entire property mentioned in the will of Kunwar Singh, is ancestral but that all other properties were not ancestral. He has held that the plaintiff accepted the arrangement made' by the will of 1878 and was not entitled to challenge it after so many years. He has further held that the effect of the various litigations was that the family became divided in about 1903. Lastly, he held that the plaintiff has been out of possession for more than 12 years over the properties and that Shib Sahai's possession has been adverse. As regards the technical plea, that the claim was barred by Section 233K, U. P. Land Revenue Act in respect of certain properties which have been partitioned by the revenue Court, he held that section has no application.
3. The plaintiff has appealed and challenged the findings of the Court below. The learned Advocate, on behalf of the respondents, has not challenged the findings of the Court below that
the property mentioned in the will of Kunwar Singh is surely ancestral property.
4. The finding was vague but it is not challenged. The fact is that although the will mentioned that some property was the self-acquired property of Kunwar Singh, there is no evidence to show that Kunwar Singh had any independent source of income from his ancestral properties with which he could have acquired properties as his own.
5. The first question which we have to consider is whether the plaintiff has proved that he was a member of a joint Hindu family with Shib Sahai up to the year 1919. (His Lordship then discussed the evidence and proceeded). In view of all these, circumstances, we have no doubt in our minds that the finding of the learned Subordinate Judge on the question of separation, must be accepted. It is true that he has not discussed the matter satisfactorily and has referred to the 10 or 12 witnesses produced on behalf of the plaintiff in a cursory manner and criticised them on the one general ground that the witnesses did not know the facts in connexion with the family. It is also true that he has either misdescribed the plaintiff or wrongly stated that the defendants had shirked the responsibility of coming into the witness-box, when as a matter of fact one of the defendants, Joti Prasad, was examined. We have examined the oral evidence and we are satisfied that it cannot in any way outweigh the inference drawn from the documentary evidence. It is not said that Shib Sahai and Harkesh continued joint in residence. No doubt for some time, as admitted by the vakil for the defendants in the Rubkar, dated 26th September 1903, Harkesh went mad. It is impossible to hold that there was a re-union between Shib Sahai and Harkesh. Having regard to all these circumstances, we are of opinion that the plaintiff's claim that he was joint when the latter died, cannot be maintained. His claim for any share by right of survivorship therefore falls to the ground.
6. As remarked above, it has not been disputed before us that the finding of the Subordinate Judge, unsatisfactory though it is, that the properties mentioned in the will were ancestral properties is open to challenge. We may, therefore, take it that all the properties mentioned in the will were ancestral in the hands of Kunwar Singh over which he had no absolute power of disposal without the consent of his co-parceners. He purported to make a bequest of the entire property and allotted a few items to Shib Sahai exclusively and the other items to both of them jointly. There was no partition in the life-time of Kunwar Singh and the will cannot be treated as a partition in the present time. At best it was the wish of Kunwar Singh which he desired should be given effect to after his death. When Kunwar Singh died the plaintiff was a minors. It is, therefore, impossible to imagine that the plaintiff could legally, have given his consent to the arrangement intended by Kunwar Singh. As held by their Lordships of the Privy Council in the case of Brijraj Singh v. Sheodan Singh  35 All. 337, even the head of a joint Hindu family has no right to make a partition by will of joint property among the various members of the family except with their consent. They have independent rights in it with which he cannot interfere. Its validity can only depend on their acceptance of such an arrangement. The learned Subordinate Judge in a loose way has found that this arrangement was accepted and acquiesced in by the plaintiff for a period of 45 years. The learned Judge has overlooked the fact that up to about 1896 Harkesh was a minor, and that for some time after that there was no disagreement between him and Shib Sahai at any rate so long as his mother remained alive. He has also not attached due significance to the fact that from 1903 onwards Harkesh began to assert his right and to repudiate at least one provision of the will The will had strictly provided that the property should not be divided without the consent of Shib Sahai. Ignoring that provision Harkesh proceeded to apply for partitions in the revenue Court. Shib Sahai set up this will and relied on this provision. His objection was overruled by the revenue Court and the plaintiff was granted the partition. Under these circumstances, it cannot be said that the plaintiff accepted all the provisions contained in the will. He certainly repudiated one part of it. As regards the rest, there is no evidence on the record to show that he expressly or in clear language accepted the dispensation of the property made by his grandfather.
7. The inference drawn by the Subordinate Judge is based entirely on the circumstances that the present suit was not instituted till the year 1923. From the long delay which has taken place the learned Judge has inferred that the plaintiff must have accepted the arrangement made by his grandfather. We are unable to draw that inference. Part of the delay is explained by the circumstance that the plaintiff was off and on of insane mind and it is also explained partly by the fact that he proceeded to get partitions of villages one after another through the revenue Court, which was a much easier process than the institution of a suit in the civil Court. We have Shown that Harkesh did not accept one part of the will. There is no evidence to show that he expressly accepted the other parts. His mere silence for a long time or the delay in bringing the suit cannot, therefore, justify the inference that this will was accepted by him. So far as the mutation of names is concerned, that was effected, soon after the death of Kunwar Singh when the plaintiff was a minor of tender years and had no voice in the matter. After the mutation took place the plaintiff could not get the entries corrected through the revenue Court unless and until he had established his right through the revenue Court. We are, therefore, unable to accept the finding of the Subordinate Judge that this arrangement was accepted and acquiesced in by the plaintiff so as to amount to an estoppel and prevent him from going behind it. Kunwar Singh, as pointed out above, had no dispensing power over the joint property and the document as a will is inoperative. We must, therefore, hold that it is not a bar to the present claim of the plaintiff.
8. The next point to consider is whether the claim is barred by limitation. The learned advocate for the respondent has argued that the present suit is governed by Article 127 of the Limitation Act and that, therefore, the period began to run from the date when the plaintiff was excluded from the joint family property. We are of opinion that article is not applicable inasmuch as there is no joint family now in existence. As held in the case of Bisheshar Tewari v. Bisheshar Dayal  15 O. C.111 and the case of Banoo Tewary v. Doona, Tewary  24 Cal. 309 that article presupposes the existence of a joint family and the exclusion of a coparcener from his joint family property. The proper article governing this suit is Article 144 in which case the defendants must prove adverse possession for more than 12 years. The learned Subordinate Judge has found that the plaintiff has been out of possession over these properties for more than 12 years and that Shib Sahai had been in adverse possession. As regards the properties which were the properties of the parties and which did not under the will come exclusively to Shib Sahai, both Shib Sahai and Harkesh must be treated as co-parceners. Even after 1903, when a disruption in the joint status of the family took place, the parties must be deemed to have continued to be co-owners entitled to equal shares in the undivided properties. It is well established that the exclusive possession of one co-sharer even though coupled with the non-payment of profits, cannot amount to a clear adverse possession unless there has been an ouster of the other co-parceners to their knowledge and openly: Burns v. Bryan  12 A.C. 192.
9. The learned Subordinate Judge was perhaps conscious of this difficulty and hence he relied on the setting up of the will by Shib Sahai in the litigations of 1903. As remarked above, one of the pleas raised by Shib Sahai in the partition suit was that the claim for partition was not maintainable in view of the provision of the will that there should be no partition without Shib Sahai's consent. The learned Subordinate Judge has not appreciated that the partition proceedings related to properties which were jointly entered in the names of the two parties and not to the properties which were exclusively assigned under the will. The written statement of Shib Sahai, therefore, cannot be taken to be an express assertion of adverse possession as regards the first class of items, namely, those which were entered exclusively in his name and which were not in dispute before the revenue Court. The mere fact that Shib Sahai relied upon one provision of the will would not justify us in holding that he was openly asserting his adverse possession as regards items to which he did not refer and which were not even in dispute. We are therefore, of opinion that the conclusion of the learned Subordinate Judge, that Shib Sahai asserted his adverse possession as early as 1903 and that since that date his possession has been adverse, cannot be accepted. It is true that the feelings between the parties were highly estranged and protracted litigation was going on. It is also true that Shib Sahai apparently did not pay the plaintiff's share of the property. It is also apparent that the plaintiff did not put forward any express claim or demand in respect of it for a large number of years, but in the absence of a clear demand and a clear refusal, we cannot hold that the possession of one co-sharer became adverse as against the other. The learned Subordinate Judge has thought that this possession became adverse since the date of the denial. This denial he takes to mean as set up in the provision of the will. That, in our opinion, however, did not amount to a clear denial of the plaintiff's title. Although, therefore, there has been a great-delay in the institution of the-suit, we are compelled to hold that there is no satisfactory evidence, direct or circumstantial, to prove that Shib Sahai had acquired title to the plaintiff's half-share in the joint property by exercise of adverse possession for over 12 years, The plaintiff's claim cannot, therefore, be barred by limitation.
10. The last point which requires consideration is which property is joint and which is the exclusive property of Shib Sahai. As regards the properties covered by the will, we have already remarked that it is not disputed that property was ancestral and it, therefore, follows that the plaintiff had a half share in all these properties. 34 bighas 4 biswas in Kapuri Govindpur were acquired in the life-time of Kunwar Singh in the name of Shib Sahai, and for some reason or other were omitted from the will. As regards this property, we have no doubt in our minds that in the absence of any evidence to the contrary, it must be presumed that this was joint property of the family. At the time when it was acquired Shib Sahai was not with his father, Kunwar Singh, and it is, therefore, immaterial in which co-parcener's name the property was acquired. It must be treated as joint family property. The plaintiff must, therefore, be deemed to have a half share in this item.
11. After the death of Kunwar Singh, a number of properties were acquired from the year 1878 to 1903 in the name of Shib Sahai. The learned Subordinate Judge has recorded a finding in one line that the plaintiff has failed to prove that other properties in dispute are ancestral. He had apparently not in his mind the fact that one item had been acquired in the lifetime of Kunwar Singh. As regards the others, he has not appreciated the fact that under the will, on which the defendants rely, Shib Sahai was allowed to manage the property on behalf of both and to charge remuneration for it. For a considerable part of this period the plaintiff remained a minor and was under the guardianship of Shib Sahai himself. The family on our finding continued to be joint till at least 1903. All these latter class of properties were acquired during this period. The ordinary presumption is that they were all joint properties and were acquired for the benefit of the family and belonged to both the members jointly. There is no evidence to show that they were acquired exclusively with separate funds. As a matter of fact we have already remarked that all the properties left by Kunwar Singh were properties that yielded the sole income of Shib Sahi. All these properties, therefore, have been acquired by Shib Sahai out of the income of the ancestral properties. We may also point out that there was a specific provision in the will of Kunwar Singh that after defraying all the expenses mentioned therein, the surplus should be spent on the construction of houses, wells, etc, and the purchase of properties through Shib Sahai. We are, therefore, justified in presuming, in the absence of any satisfactory evidence to the contrary, that all the properties so acquired, were purchased for the joint family out of joint family funds. The plaintiff can, therefore, have his half-share in these properties also.
12. The result, therefore, is that the plaintiff's claim for the entire property by right of survivorship cannot be sustained but his claim for a half-share in the entire property in suit must be decreed. We accordingly allow this appeal, and setting aside the decree of the Court below, decree the plaintiff's claim for a half-share in the properties mentioned in Schedules A and B attached to this judgment which have been approved of and accepted by the counsel of the parties. We direct that the parties should bear their own costs in both Courts.